The Abu Ghraib Plaintiffs’ Meandering Path to Court

In April 2004, images from Abu Ghraib prison surfaced, depicting U.S. military personnel severely mistreating Iraqi detainees. Now, 20 years later, the consequences of these actions are still being addressed in court. Most recently, a trial against CACI Premier Technology, Inc. (CACI), a contractor that provided interrogation services to the U.S. military at Abu Ghraib, ended on May 2 in a mistrial. This trial revisited one of the most controversial periods of the Iraq war, as the United States continues to grapple with its conduct during that war. The judge in the case scheduled a new trial for Oct. 30. 

In the litigation between plaintiffs Suhail Najim Abdullah Al Shimari, Salah Hasan Nusaif Jasim Al-Ejaili, and Asa'ad Hamza Hanfoosh Al-Zuba'e, and defendant CACI Premier Technology, Inc. (CACI), the core of the dispute centers on severe human rights violations alleged to have occurred at Abu Ghraib prison in Iraq. This case has been marked by extensive procedural maneuvers and significant legal debate over the applicability and scope of the Alien Tort Statute (ATS), 28 U.S.C. § 1350. After a series of dismissals, appeals, and Supreme Court denials of certiorari, the legal landscape has crystallized around a specific set of claims featured at the recent trial. 

In its defense at trial, CACI relied largely on arguments that the conduct occurring at Abu Ghraib was not undertaken or directed by its employees, and that any actions CACI employees took were performed under the operational control of the military, thus precluding liability for CACI. Conceding that there was “no question that abuse happened” at Abu Ghraib, CACI insisted that the “MPs who [acted] were sadistic” and undertook the actions “on their own and without any encouragement.” Attorney Baher Azmy for the plaintiffs countered that “[n]ot only did CACI interrogators encourage MPs to abuse detainees, they directed them to do so.” 

Background

Beginning in 2003, the U.S. military detained the plaintiffs, all Iraqi nationals, at Abu Ghraib prison in Iraq. Abu Ghraib, a prison west of Baghdad, became infamous in 2004 when leaked photographs exposed severe human rights abuses committed by U.S. military personnel against Iraqi detainees. In this case, the plaintiffs allege that employees of CACI Premier Technology, Inc., a private company contracted by the U.S. government, participated in their abuse and the associated interrogations.

Several U.S. military reports have highlighted the involvement of CACI in the interrogation processes at Abu Ghraib prison in Iraq and the subsequent allegations of detainee mistreatment. The investigation led by Army Maj. Gen. Antonio Taguba in 2004 identified instances of “sadistic, blatant, and wanton criminal abuses” occurring between October and December 2003.

Further scrutiny came with the military report released in August 2004, which attributed varying degrees of responsibility to military intelligence personnel, military police, medical soldiers, and civilian contractors, including CACI employees, for the abuses at Abu Ghraib. The report specifically cited CACI employees for their involvement in abusive practices. The findings related to CACI employees included evidence such as misuse of dogs during interrogations, detainee abuse, unauthorized stress positions, and failure to report abuses.

The plaintiffs brought suit in 2008 in a federal district court in Ohio, before the case was transferred to the Eastern District of Virginia following the defendants’ unopposed motion for a change of venue. The plaintiffs alleged that the defendants committed (1) “torture,” (2) “civil conspiracy to torture,” (3) “aiding and abetting torture,” (4) “cruel, inhuman or degrading treatment,” (5) “civil conspiracy to treat plaintiff in a cruel, inhuman or degrading manner,” (6) “aiding and abetting cruel, inhuman and degrading treatment,” (7) “war crimes,” (8) “civil conspiracy to commit war crimes,” (9) “aiding and abetting commission of war crimes,” (10) “assault and battery,” (11) “civil conspiracy to assault and batter,” (12) “aiding and abetting assaults and batteries,” (13) “sexual assault and battery,” (14) “civil conspiracy to sexually assault and batter,” (15) “aiding and abetting sexual assaults and batteries,” (16) “intentional infliction of emotional distress,” (17) “civil conspiracy to inflict emotional distress,” and (18) “aiding and abetting intentional infliction of emotional distress.”

The complaint specifically made two allegations against the corporate defendants (CACI and L-3 Services): (1) “negligent hiring and supervision” and (2) “negligent infliction of emotional distress.”

Novelty and Significance of the Litigation 

The Al Shimari case is unique in its path to trial. Many other civil suits brought by victims of similar abuse have been thrown out based on the limits of constitutional protections for non-U.S. citizens abroad, immunity for U.S. government actors, and the preclusion of confidential national security information from discovery.

Previously, the closest that victims of U.S. torture came to having their day in court in a civil suit was the caseSalim v. Mitchell, where victims of “enhanced interrogation techniques” in the CIA’s rendition, detention, and interrogation (RDI) program brought a civil suit under the Alien Tort Statute against the psychologists contracted to design and implement the RDI program. The case nearly reached trial after a district court denied the defendants’ summary judgment motion. The court rejected the defendants’ arguments that the court lacked jurisdiction under the political question doctrine, that the defendants’ were entitled to derivative sovereign immunity, that the court lacked jurisdiction under the ATS because the statute did not apply extraterritorially, and that there were no factual disputes as to defendants’ liability for violating the law of nations, aiding and abetting, and conspiracy. However, the case settled just a few weeks after the court ruled, about two weeks before it was scheduled to go to trial. Notably, the government did not invoke the state secrets privilege. 

There are a few distinct elements in the Al Shimari case that have made it possible for plaintiffs to reach trial. Oftentimes when the government asserts the state secrets privilege, the withheld information is necessary for the case to be litigated so the case must be dismissed after the court accepts the privilege. In this case, as they successfully fended off numerous motions to dismiss (discussed further below), the plaintiffs made a sufficient prima facie case against CACI without having to rely on the third-party U.S. Defense Department privileged information that identifies the interrogators at Abu Ghraib. 

Plaintiffs’ theory of liability is also a key factor; instead of alleging that CACI personnel directly mistreated them, plaintiffs have argued that CACI is liable for conspiring and aiding and abetting others who harmed them. These claims require that plaintiffs show that CACI provided practical assistance to the people who abused the plaintiffs—as opposed to proving that certain individuals abused plaintiffs—and did so for the purpose of facilitating the mistreatment. Accordingly, the privileged information about the identities of specific interrogators is not necessary for plaintiffs to bring their case. 

The role that the U.S. government has played in Al Shimari is also critical to how this case made it to trial. That CACI is a government contractor helped the plaintiffs overcome the sovereign immunity hurdle that other abuse cases have failed to survive when bringing claims against U.S. government officials. And unlike many similar war on terror abuse cases, such as the ongoing military commissions cases tied to the CIA’s RDI program in the 9/11 case, the abuse at Abu Ghraib was not part of a larger sanctioned government program. The U.S. government also did not take a position on whether CACI’s motion to dismiss based on the state secrets privilege was warranted; in a response to CACI’s motion, the government merely noted the importance of maintaining the privilege over the confidential information.

Procedural History

The Al Shimari case has had a lengthy and meandering path up and down the federal courts between first being filed in 2008 and finally coming before a jury in 2024. The case is notable not only because of its duration but also because, unlike other cases (such as El-Masri v. United States, United States v. Abu Zubaydah, and Mohamed et al. v Jeppesen Dataplan, Inc.) brought by former detainees alleging abuse at the hands of the U.S. government and its contractors during the global war on terror, it was not dismissed on the grounds that the state secrets privilege precluded litigation, and the case made it to trial.

At the district court level, Judge Gerald Lee initially granted CACI’s motion to dismiss with respect to jurisdiction under the Alien Tort Statute, while finding that the common-law tort claims were justiciable—with questions of immunity and preemption requiring discovery to fully assess. The ATS, passed by the First Congress, provides jurisdiction to district courts for “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” But in September 2011, a panel of the Fourth Circuit overturned Judge Lee’s ruling on interlocutory appeal, dismissing these state law claims as preempted by federal interests. The panel cited the D.C. Circuit’s similar analysis in Saleh v. Titan Corp, which held that both the state tort law and ATS claims are “preempted on the battlefield because [they] run[] counter to federal interests.” The Saleh court itself relied in part on the Supreme Court precedent of Boyle v. United Technologies Corporation, which had held state tort law preempted with regard to alleged design defects in military equipment—though the Saleh court found that underlying preeminence of the federal government in “wartime policy-making” meant “even in the absence of Boyle the plaintiffs’ claims would be preempted.” An en banc rehearing by the Fourth Circuit then reversed and dismissed CACI’s appeal on the grounds that the court lacked jurisdiction over such an interlocutory appeal.

In 2013, as litigation continued, the Supreme Court handed down Kiobel v. Royal Dutch Petroleum, a key decision that narrowed the scope of the ATS by applying a presumption against extraterritorial application. Under Kiobel, parties could prevail on ATS claims involving conduct committed outside the United States only if they could prove that the claims “touch and concern the territory of the United States ... with sufficient force to displace the presumption.” Judge Lee dismissed Al Shimari’s ATS claims under Kiobel because the actions took place abroad. The Fourth Circuit vacated that decision on appeal (in Al Shimari III), finding that the “touch and concern” test was satisfied by CACI’s status as a U.S. corporation, by the U.S. citizenship of CACI’s employees (whose conduct formed the basis of Al Shimari’s claims), and by CACI’s relationship with the U.S. government and armed forces—among other reasons. 

Judge Lee again dismissed Al Shimari’s ATS claims on remand, finding, most saliently, that the court lacked subject matter jurisdiction under the political question doctrine because CACI’s conduct was “closely intertwined” with military decisions, which were not subject to judicial review. In 2015, the Fourth Circuit again vacated and remanded in Al Shimari IV. The court applied the factors articulated in Taylor v. Kellogg Brown & Root Services, which involved a negligence action by a Marine against a government contractor for injuries sustained at a military base in Iraq. In that case, the court held that in only two situations would the political question doctrine apply and bar judicial review with respect to claims against contractors: first, where a government contractor acted under the direct control of the military, or second, where a decision on the merits of the claim concerning the contractor’s conduct “would require the judiciary to question ‘actual, sensitive judgments made by the military.’” 

Under this framework, the Fourth Circuit held that CACI was not under direct control because “the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity.” Likewise, “commission of unlawful acts is not based on ‘military expertise and judgment,’ and is not a function committed to a coordinate branch of government,” thus failing to satisfy the second Taylor threshold. Accordingly, the court held that “to the extent that the plaintiffs’ claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine.”

On remand, Judge Lee recused himself (he retired the following year), and the case was reassigned to Judge Leonie Brinkema. Judge Brinkema first issued an opinion in the case in June 2017, holding that the claims of torture, cruel, inhuman, and degrading treatment, and war crimes all violate clearly established international law and are actionable under the ATS, rejecting CACI’s contention that the lack of a statutory cause of action for these claims precluded the plaintiffs from relying on them for the basis of their ATS action. Ruling on CACI’s renewed motion to dismiss in February 2018, Brinkema dismissed Al Shimari’s direct liability claims while retaining the conspiracy and aiding and abetting ATS claims. 

CACI made another one of its many attempts to dismiss the case in December 2018, when it moved to dismiss on the basis of the United States’s successful invocations of its state secrets privilege. Although not a party in this case, the United States can move to prevent the disclosure of sensitive national security information in civil litigation. The government asserted the privilege three times throughout the litigation. However, the information over which the government asserted the privilege was limited to the identities of the interrogators, analysts, and translators for Abu Ghraib, interrogation plans and reports, and intelligence reports. The court accepted the government’s privilege claims but ruled that the parties could depose participants in the plaintiff’s interrogations anonymously by phone, and that the U.S. government could direct the anonymous deponents to withhold information that could identify themselves or others.

While the subsequent depositions limited witness testimony, questioning concerning many central factual questions such as the witnesses’ status at Abu Ghraib, their participation or knowledge of abuse at Abu Ghraib, and the nature of the military oversight of the interrogation process was permitted. Also allowed were certain questions regarding witness credibility, such as whether the witness had been court-martialed or punished for anything that happened at Abu Ghraib (or generally), had been convicted of a crime, or had received commendations. 

CACI argued in its motion to dismiss that the government’s assertion of the state secrets privilege prevented it from adequately questioning multiple witnesses in the case, which CACI said raised issues about those witnesses’ credibility. CACI claimed that the unavailability of the privileged information prevented it from sufficiently defending itself. In a February 2019 hearing, Judge Brinkema denied CACI’s state secrets motion to dismiss—stating that both CACI and the plaintiffs were prejudiced by not having the opportunity to fully question the witnesses, but that the use of disguises for witnesses and proper jury instructions about the limitations could help mitigate any party’s concerns. 

A 2019 Fourth Circuit panel dismissed a further appeal by CACI, reiterating the lack of subject matter jurisdiction over such an interlocutory appeal as recognized by the earlier en banc court. CACI filed a petition for writ of certiorari to the Supreme Court after the Fourth Circuit’s dismissal, which included an argument that the state secrets privilege was impeding its defense. The Supreme Court denied CACI’s petition for certiorari in 2021. Following this denial, CACI again filed two motions to dismiss before the district court for lack of subject matter jurisdiction, arguing that intervening Supreme Court precedent (including subsequent interpretation of the ATS in Nestlé v. Doe) meant the case presented an impermissible extraterritorial application of the ATS and precluded recognizing the cause of action from U.S. war conduct. Considering the consequences of Nestlé and other cases invoked by CACI, Judge Brinkema denied these motions to dismiss in 2023, finally allowing the ATS claim to proceed to trial. 

An October 2023 order set the jury trial date for April 15, 2024.

The Arguments at Trial

The trial lasted six days and included testimony from dozens of witnesses, most of whose testimony was provided through previous deposition recordings or transcripts read aloud to the court. 

The remaining claims in this litigation (excluding those that have been dismissed through prior rulings) fall into two categories: conspiracy, and aiding and abetting. These are framed under the theory of secondary liability, where CACI is not accused of directly perpetrating abuses but rather of facilitating, enabling, or otherwise conspiring to commit violations of international law prohibiting torture and war crimes.

Conspiracy

Plaintiffs Suhail Najim Abdullah Al Shimari, Salah Hasan Nusaif Jasim Al-Ejaili, and Asa'ad Hamza Hanfoosh Al-Zuba'e allege that CACI employees conspired with U.S. military personnel to commit torture and other illegal acts. This claim posits that there was an agreement or tacit understanding among the CACI interrogators and military staff at Abu Ghraib to conduct abusive practices, which were carried out during the interrogations. The legal theory here hinges on demonstrating that CACI employees were active participants in the creation and implementation of a plan that resulted in egregious violations of international law.

Aiding and Abetting

Here plaintiffs allege that CACI, through its employees, provided substantial assistance or encouragement to U.S. military personnel who committed the abuses. The focus is on whether CACI’s actions had a substantial effect on the perpetration of tortious actions, such as providing training, interrogation techniques, and logistical support that facilitated the human rights abuses.

Both claims against CACI hinge on establishing a chain of responsibility that connects the actions of its employees to the abuses at Abu Ghraib. The legal challenge for the plaintiffs at trial was to delineate this connection within the framework provided by the ATS, which necessitates showing that these actions were part of a systematic pattern that violated established international norms.

Citing witness testimony and accompanying documentary evidence (such as CACI’s contracts, its code of conduct, the Army Manual, and CACI communications), plaintiffs argued that there was a conspiracy between CACI and military intelligence and police to “soften up” detainees before interrogations, in which CACI contractors instructed military personnel to carry out abuse. Plaintiffs’ counsel described this alleged abuse as an effort to “sort of break them emotionally in anticipation of the interrogations that CACI was managing,” resulting in the torture and cruel, inhuman, and degrading treatment of the plaintiffs.

According to the plaintiffs, CACI interrogators knew about the abuse. Plaintiffs said the hallways in Tier 1, where the abuse and interrogations occurred, were so crowded that it would be impossible to be ignorant of the abuse. CACI interrogators had the ability, according to testimony from CACI witness Dan Porvaznik (who served as CACI’s site lead at the prison and as the operational supervisor), to sit in on and stop interrogations if there was a CACI code of conduct, Geneva Convention, or international law violation. The plaintiffs suggested that CACI had direct control over their contractors. The plaintiffs pointed to language from the manual describing contractors’ control over their employees: “Commanders do not have direct control over contractors”; “only contractors manage, supervise, and give directions to their employees”; and “the contractor … must take direct responsibility and action for his employee’s conduct.” Plaintiffs maintained that CACI senior management was aware of detainee abuse, and failed to report it.

Plaintiffs also argued that CACI’s negligent hiring of unqualified interrogators and the company’s failure to train, supervise, and discipline interrogators make the company liable for the abuse. Plaintiffs maintained that CACI alone had the ability to fire or discipline their interrogators pursuant to CACI’s contract with the U.S. military, and therefore the company bears liability. CACI’s Amy Monahan testified on cross-examination that CACI sent interrogators to the prison, without Army approval, who did not meet the Army’s requirements set forth in their contracts. Plaintiffs claimed that CACI’s hires were often approved by Tom Howard, a CACI adviser to the military, not by the military itself.

CACI took what plaintiffs at one point described as a “kitchen-sink” approach in defending the case. CACI argued that there is no evidence that CACI personnel directly mistreated plaintiffs directly or indirectly (through a conspiracy or through aiding and abetting) and instead placed blame on (and liability with) the U.S. military for any injuries inflicted. CACI counsel characterized plaintiffs’ case as being built on “the boogeymen.” CACI brought up the infamous photographs, noting that the numerous pictures published showed only one CACI employee in them. According to CACI, this suggests that there was no material CACI involvement in abuse. 

CACI counsel stated that there were “bad things [that] happened” at Abu Ghraib but that the infamous pictures do not meaningfully relate to the present case because they had almost nothing to do with the plaintiffs or with the CACI employees. Instead, the blame for these actions lies with the military personnel who had already faced punishment through the military justice system. Counsel argued that “most of the abuses that occurred at Abu Ghraib had no connection with interrogations” and were only perpetrated by military personnel who “were sick,” “bad people,” and “were sadistic, who were criminals, and who did it on their own for their own purposes and who didn’t encourage anybody.” CACI relied primarily on testimony from anonymous interrogators and CACI employees to refute any link between the company and abuse at Abu Ghraib. Dan Porvaznik, for example, stated that he did not see any abuse at Abu Ghraib.

CACI management testified that there was no link between CACI and abuse at Abu Ghraib, and they asserted that CACI’s employees were sent as screeners and later promoted to interrogators by the Army due to staffing shortages. The employees were then integrated into the Army’s chain of command and placed under the Army’s supervision. 

The Verdict

In closings, plaintiffs requested $3 million in compensation for each plaintiff and $32 million in punitive damages, which was the amount that CACI received from its government contracts. After eight days of deliberations, the jury announced that it could not reach a unanimous verdict. The jury’s impasse appeared to relate to the interpretation of the “borrowed servant doctrine” and the Army field manual, among other issues. 

Post-Trial Briefings

CACI made several legal arguments in its post-trial briefing: The company raised the borrowed servant defense, discussed the jurisdictional scope, and cited the state secrets doctrine. CACI relied primarily on the borrowed servant doctrine as a defense, maintaining that the U.S. Army had total operational control over conditions at Abu Ghraib prison.

Alien Tort Statute Jurisdiction

The contracting company once again contested the ATS jurisdiction, stating that the claims were an “impermissible extraterritorial application of the ATS” and that plaintiffs’ claims were not cognizable under the ATS because the only substantive cause of action is the Torture Victims Protection Act. However, Judge Brinkema rejected this argument during a hearing, stating there was sufficient evidence of domestic activity to allow the case to proceed. CACI also argued that preemption required dismissal because the case arises out of the war in Iraq, and as such, state law is preempted by the Constitution and federal law, which assign “exclusive responsibility for waging war and for determining national security policy in the federal government.” Brinkema ultimately denied CACI’s motion in a June 2024 hearing. 

State Secrets Doctrine

CACI again complained in their post-trial briefings about the state secrets doctrine, arguing that dismissal was necessary because the company was prevented from “obtaining and presenting critical information” like the identities, credibility, and testimony of individuals who participated in plaintiffs’ interrogations, as well as government records related to the interrogations. CACI argued that preventing counsel from corroborating or pursuing further discovery based on anonymous testimony impeded CACI’s due process rights.

Plaintiffs noted in post-trial briefings that CACI was not alone in how the government’s decision to invoke the state secrets doctrine affected the case. Plaintiffs said, however, that the “only difference is that Plaintiffs have not been as vocal in their complaints.” 

Judge Brinkema criticized CACI’s repeated discussion of the state secrets privilege during the trial, noting that CACI “made the point … quite graphically.” Brinkema also noted that there were state secret invocation discrepancies between two interrogators’ testimonies about the Geneva Convention, characterizing this as “[a]bsolutely ridiculous,” and stating that it “unfortunately [makes] the United States government look very foolish in this case, if not overly defensive.”

The jury instructions stated that the court had limited both the plaintiffs and the defendant from producing all the evidence they would have wanted to introduce, and directed the jury not to make any credibility determinations based on the testimony’s format. 

Post-Trial Posture

On June 14, Judge Brinkema held a hearing on two motions: CACI’s renewed motion for a judgment as a matter of law, and plaintiffs’ motion for a new trial. In the hearing, Brinkema noted that the jury deliberated for longer than the entirety of the six-day trial while failing to reach a unanimous verdict. She also said that according to a juror’s report to the media, the majority of the jurors favored the plaintiffs. 

Brinkema stated that she carefully evaluated the case and its evidence, relying on Porvaznik’s “critical” testimony in particular, which Brinkema said “cuts both ways.” Given the dispute, the court denied CACI’s renewed motion for a judgment as a matter of law.

Brinkema also addressed the state secrets doctrine, which CACI invoked in its effort to dismiss the case. Brinkema noted that the state secrets doctrine prevented both plaintiffs and CACI from presenting relevant information to the jury, and thus would not be the basis for a judgment as a matter of law in CACI’s favor.

The court then set a tentative retrial in October and urged the parties to reach a resolution without an admission of liability. Plaintiffs also noted in a post-trial brief that they were open to settlement discussions and even approached CACI’s counsel before trial about the possibility of settlement, which CACI refused.

The jury trial is set to begin Oct. 30 at 10:00 a.m. in Alexandria Courtroom 700.