The exposure of detainee abuse at the Abu Ghraib prison facility in Iraq put into sharp relief the moral hazards of a war on terrorism. The question was thus posed: when a state is faced with its own vulnerability in the aftermath of an attack, how will the rule of law survive? Perhaps unsurprisingly, clever litigators have responded to the Abu Ghraib debacle by seeking novel theories of tort liability. Their goal of prosecuting perpetrators of torture is a challenging one. Numerous obstacles stand in their way, not least sovereign immunity and the immunity of coalition forces in Iraq from local jurisdiction. (1)
But an Achilles heel in the U.S. Government's immunity is the rising use of private military firms (PMFs) (2) in capacities traditionally reserved for government agents. Along with the military and civilian government personnel at Abu Ghraib were numerous private employees of the independent contractors CACI International, Inc., and Titan Corporation. (3) These employees operated interchangeably with their government counterparts as interrogators and translators, and are thus implicated in the abuses that took place at Abu Ghraib. (4) Yet, they are not clothed with the immunity of a state actor, as they are employees of an independent contractor and not the government. (5) Encouraged by recent successful suits against corporations for violations of the law of nations, (6) human rights activists have filed Alien Tort Statute (ATS) claims against CACI and Titan in federal court claiming, inter alia, torture, crimes against humanity, and war crimes. (7) We are thus faced with a dual proxy: the ATS acts as a proxy in American courts for international criminal law, and the PMFs act as a proxy for the U.S. Government.
These PMFs should be held accountable for violations. Beyond vindicating ethical and human rights principles, to hold such firms liable would provide a clear incentive to report government misconduct in an environment usually fraught with danger for military whistleblowers. It is the rare soldier that will risk retribution from her chain of command and fellow soldiers to bring attention to witnessed misconduct. The cost-benefit analysis for a PMF employee is different. Although engaged in military operations, a PMF employee is not in the military and so not subject to its chain of command or the implied code of silence ingrained in military culture. In fact, in the face of potential liability, PMFs and their employees will retain a very clear pecuniary incentive to report any misconduct they witness.
Although the ATS coupled with government use of PMFs may provide for a theory of liability, the tools of human rights law often wielded by activist litigators are not up to the task. Human rights norms such as the torture prohibition are relatively underdeveloped, leaving gaps that need to be filled by more established and enforceable norms such as those provided by international humanitarian law. This Note will argue that the torture of detainees at Abu Ghraib does not, as a violation of human rights law, provide an adequate cause of action under the ATS. Instead, the war crime of prisoner of war (POW) abuse would provide a more doctrinally and strategically sound cause of action that can serve as an effective stand-in for the weaker torture prohibition in human rights law.
This Note will proceed in three parts. The first part will provide a brief introduction to the relevant facts surrounding the events at Abu Ghraib and the employment of contractors, followed by a discussion of the historical roots and current status of the ATS. The second part will focus on the limited scope of the torture prohibition, both in substance and application, and suggest an alternative cause of action based on POW status. The third part will show the problems and potential of assessing liability for private contractors by applying the crime of POW abuse as a "war tort" in the context of the ATS. …