Lawfare Daily: Accountability for Abu Ghraib

[Intro]

Michael Posner: We had outsourced responsibility. We had outsourced some measure of operationalizing this to private individuals. There were a couple of people, kind of diabolical characters, who, you know, brought their theory of how you get people to fess up to what, what happened.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare 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.

Michael Posner: The second jury though, you know, 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.

Natalie Orpett: Today we're talking about a landmark verdict in the case of Al-Shimari v. CACI, where a government contractor working with the U.S. military and CIA was held liable for torture and human rights abuses at Abu Ghraib prison in Iraq back in the early 2000s.

[Main Podcast]

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 Ghraib prison.

But it's been 20 years in the making, or actually more. The very famous photos that put Abu Ghraib on 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 Ghraib prison in Iraq and what was the context for it?

Michael Posner: 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 and get it fast. And so they created a category that they called “enhanced interrogation techniques,” which included a number of things that heretofore 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, the 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 a 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.

Natalie Orpett: Right. And it's remarkable that Abu Ghraib actually, at its height, 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, who were being sexually humiliated, a human pyramid of naked men. I mean, it was really quite dramatic photographs that were 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?

Michael Posner: Well, one of the things that happened that I was very involved in, 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, a prominent former military officer himself, to challenge the Bush administration and this notion of enhanced interrogation techniques.

Turned out that the uniformed 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 U.S. 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 an intelligence agent 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 this show. By the time we did it, it had been 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 in Abu Ghraib. He's a young guy. He had been trained by the military to do interrogations. And he told the writers of this show, when I got to Iraq, they told me forget about everything you learned at Fort Huachuca, you're in Iraq now, use your imagination, do whatever it takes to get the terrorists to 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 on the notion that this is not good national security policy.

And what the interrogators said in that meeting was, we befriend 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 they've been abused. So this was bad policy, it was bad law, it was ethically outrageous, and we paid a price for it.

Natalie Orpett: 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 the so-called torture memos came out, showing that the White House had actually signed off on suspending, or really deciding that the Geneva Conventions protecting the treatment of prisoners didn't apply to these people, and really letting these types of treatments run wild.

So, you know, 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 martial. There were a couple of reports in the military.

I just, I'm hoping you can talk us through some of the fallout in the military side. You know, 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, was the CIA doing anything in response after this was all coming out?

Michael Posner: Yeah, 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, our 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? And it was a radically changed policy. This had not been the policy before 9/11 and Abu Ghraib 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 this 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, you know, brought their theory of how you get people to fess 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 CACI, I don't know what they call themselves, but a big private security firm. Seven billion dollars now in revenue, it's not a small firm. And they were brought in as advisors to the military at Abu Ghraib and these other facilities to help figure out how to extract this information.

Natalie Orpett: So as you say, the liability for the U.S. government is really limited to what the U.S. government wants to do for itself, because it's very difficult for individuals to bring claims against U.S. actions abroad, particularly against the military. You know, judges like to invoke the political question doctrine when it comes to reviewing military decision making. Of course, it's happening overseas. So extraterritoriality 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, amongst 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 there 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?

Michael Posner: 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 Tort 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 tort action against people who were, for acts that occurred outside of the United States that violate the law of nations. And again, those terms are quite vague. That term is quite vague. It was, it sat basically dormant for a couple hundred years.

And in 1980, a suit was brought against a Paraguayan police official for torturing a young man in Paraguay. The torturer 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 upheld 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, in Iraq, coming to a U.S. 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, of Iraqi citizens. So the plaintiffs are Iraqi, the action occurred in Iraq, but the idea is to use a federal court in the United States to hold them accountable and get compensation to the victims.

Natalie Orpett: So as I understand it, 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 ATS, so we had a narrowing of the ATS 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?

Michael Posner: Well, at first they basically said that there were a range of human rights violations, violations of U.S. 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 are carrying out these acts.

Natalie Orpett: 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 Kiobel decision. Can you talk about what that did and its impact on this case?

Michael Posner: Sure, and maybe a little bit of background on that as well. Initially, as I say, the lawsuits that were brought under this Alien Tort Statute were directed at security officials, the police, you know, 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 were brought, initially in New York, in 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 going to 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, was Mobil 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 and facilities around the oil mining sites. And so a series of lawsuits were brought against these oil companies, Shell in particular, and they rose through the courts, and Kiobel 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 Alien Tort Statute. So we've seen in that case and several others a kind of retreat on the notion that this is what the courts ought to be doing.

And it's part of a, I would say, a general trend. The courts have gotten more cautious, more conservative. We've got more conservative judges. But the notion of expanding this doctrine to the private sector and especially to foreign companies, is clearly disfavored by the current Supreme Court.

Natalie Orpett: Right. And as I understand it, the other aspect of Kiobel 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 abroad. It was, as you said, non-U.S. persons who are plaintiffs, non-U.S. 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 Al-Shimari case that we're discussing today in the Al-Shimari case, CACI did actually go forward after the Kiobel decision and say, okay, well, applying 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.

Michael Posner: Well, I think the essential decision of the Fourth Circuit was that as a private contractor, CACI could be held responsible for the actions of its employees in carrying out these detention, interrogation operations.

You know, 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, in a systematic way, urging the U.S. 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 and night. You need to be held accountable as a, as an actor in this, and in fact driving this. And on that basis, the case has to go forward.

Natalie Orpett: Right. And I think a dispositive factor for the Fourth Circuit was that as a jurisdictional matter, CACI is a U.S. corporation, and the employees involved, or allegedly involved at this point, were U.S. citizens. So under the test that Kiobel had applied, which was the, what's called the touch and concern test, the idea was that, you know, 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 these are, this is a U.S. corporation and U.S. persons and that's enough.

So the case had to move forward under the Alien Tort Statute and from there. There were multiple other efforts that CACI brought to dismiss the case on additional grounds. Can you talk about some of those?

Michael Posner: Yeah, you know, the defendants in these cases always will say, you know, it's a forum non conveniens. 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 in a foreign prison, in a wartime situation. It's a political case. They invoke the political doctrine exception saying, you know, this, 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 overcame 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 foreign, any corporation, foreign or domestic, involving these human rights violations outside the United States is fair game.

Kiobel 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 contractor 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 Tort Statute relating to foreign conduct by U.S. companies and U.S.-based employees.

Natalie Orpett: 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 conspiracy, kept the aiding and abetting claims, but did drop direct accountability. So tell us about that. What happened? What was the basis of that?

Michael Posner: 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 abetting what the military did or the CIA. It's another thing to say that they were directly implicated.

And CACI’s notion again is, you know, we're 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 abetting, of what was clearly an illegal set of actions.

Natalie Orpett: 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, particularly because of the state secrets 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 wasn't even brought against the U.S. military. But the Fourth Circuit had expressly found in response to CACI’s argument that, you know, we were acting at the direction of the U.S. military and therefore can't be held liable, the Fourth Circuit had said, no, that's not a plausible defense, and the U.S. military cannot direct contractors to perform unlawful actions.

But of course, the involvement and the sort of intermingling of the U.S. government means that even throughout this private parties litigation, the U.S. government is going to have interests. So as I mentioned, the state secrets 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?

Michael Posner: 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 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 this subject, the use of torture, extreme interrogation by a Senate Intelligence Committee chaired by Dianne Feinstein. Hundreds of pages, thousands of interviews, et cetera. The, 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, 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, the national interest.

And so that was another strain of this case, the government trying to basically, you know, prevent there being an open public hearing on these issues in a federal court just as the Obama administration and before that the Bush administration tried to prevent Congress and the intelligence committees from publicly disclosing what they had found.

Natalie Orpett: Right, and what was interesting to me in this case was that the state secrets doctrine, you know, in other cases is typically invoked against the plaintiffs, who are seeking some sort of discovery in order to make their case. Here, it was invoked also against the defendants because CACI 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 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 Ghraib, but to do so anonymously which is the type of substitute work around that courts are supposed to use in order to allow these issues to be litigated without unduly threatening national security.

But CACI was very upset about this and actually brought, on an interlocutory basis, the question of whether its defense was being unfairly prejudiced by the government's invocation of state secrets, and then petitioned for cert, 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 unduly prejudicial in the case of litigation against CACI?

Michael Posner: You know, I think it's been true from the get-go, beginning even in the period right after the, 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, every rational 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, an American citizen, who was arrested at O'Hare Airport and imprisoned in South Carolina, and his name is Padilla, José 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, you know, 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 an 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 cert 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 the District Court, in this particular case, it's much to their credit that they have, you know, 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 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 appellate 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 U.S. 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 like, 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 to wait so many years. But I actually find it quite extraordinary that this case found the light of day and resulted in this kind of a judgment in 2024.

Natalie Orpett: Absolutely. So, we're now finally getting to the trial in our long chronology of the case. There were two additional motions to dismiss after the Supreme Court denied cert. 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.

Michael Posner: 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 deadlocked. The second jury, though, you know, made the decision that the defendant, that CACI 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 CACI’s behavior was a violation of U.S. law and a violation of the Alien Tort Claims Act, and that's where we are.

Natalie Orpett: 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 where 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 entailed. 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?

Michael Posner: You know, 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 Nisour 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 Blackwater 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'm 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 ICOCA. 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 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 CACI, 40 million dollar judgment. ICOCA now, with the U.S. government involved, the State Department saying we're not going to 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 suggests that 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 and 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 open the floodgates and say, let's go back to Abu Ghraib.

He didn't do that. But he had people around him like General Mattis, 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 is 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 where soldiers and intelligence agents are operating.

Natalie Orpett: 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 a very high verdict. That is, of course, not in a national security framing directly, didn't involve security contractors. But was a private corporation as well.

And you've talked about, you've talked to there, and you just talked to 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 counsel'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. You know, what is the world looking like from their perspective?

Michael Posner: Well, I should put on my hat 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 where, as we've discussed, there's a bit of ambivalence on the part 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, the Chiquita case from earlier this year, and now the CACI case, where courts have said there's still room to do this.

But we also have a number of other countries that are getting into the act, Spain 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 broad trend, maybe the U.S. is not in the lead, but there's certainly a greater sense that there needs to be some kind of jurisdictional basis, so that companies don't operate roughshod without any accountability.

Second point, related to that, there is a very strong movement now in Western Europe, in 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 counsel of a Fortune 500 company, I'm both thinking about the Alien Tort Statute 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 working, 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.

Natalie Orpett: Okay, I think that's a great place to leave it. Michael Posner, thank you so much for joining us.

Michael Posner: Thank you for having me. Good to talk with you.

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