After five years, Arlington-based defense contractor CACI International and four plaintiffs who allege abuse at the Abu Ghraib prison in Iraq are awaiting a judge’s decision that could dismiss the case.
U.S. District Judge Gerald Bruce Lee is weighing whether a Supreme Court ruling in April and the failure of three plaintiffs to appear in the United States should bring an end to the case. The plaintiffs allege that employees of a CACI unit were part of a group that abused detainees at Abu Ghraib.
This month, CACI argued in U.S. District Court in Alexandria that the Supreme Court decision in Kiobel v. Royal Dutch Petroleum provided grounds to dismiss much of the case. In Kiobel, the high court found that the Alien Tort Statute — under which most of the claims against CACI were brought — is presumed not to apply to actions outside the United States.
William Koegel, CACI’s counsel, told the judge that the ruling means that the plaintiffs’ case no longer has jurisdiction. “It’s very straightforward,” he told Lee.
But the plaintiffs’ attorney, Baher Azmy, who is also legal director of the Center for Constitutional Rights, has argued that a detention center operated by the U.S. government “constitutes U.S. territory.” He called CACI’s reading of the Supreme Court decision “implausibly simplistic.”
“The holding in [Kiobel] . . . suggests that it is a presumption . . . but it can be overcome,” Azmy said.
Mark Graber, a professor at the University of Maryland’s law school, said there’s a “clear distinction” between the Kiobel case and the CACI case.
“Kiobel dealt entirely with actions that had nothing to do with the United States,” according to the majority decision, Graber said. In the Abu Ghraib case, “it’s an American entity.”
Even if Lee allows the case to move forward, there are concerns about the plaintiffs’ ability to appear in person.
CACI has filed a motion asking the judge to dismiss the claims of the three plaintiffs who have not appeared in the United States to give depositions. One plaintiff, who lives in Qatar, has given a deposition in person, but the others have struggled to enter the country, according to their attorney.
The plaintiffs received boarding passes at the Baghdad airport this year but were turned away by airport agents, according to court documents.
CACI argued in a court document that their inability to comply with the court order is “self-inflicted.” The company contends that the former prisoners’ “detention records provide ample evidence of derogatory information that would disqualify them from entering the United States.”
Azmy said in court that depositions could be done by video while the plaintiffs continue their efforts to travel to the United States. But the judge expressed skepticism about holding a trial by video, and he indicated that he is losing patience.
“This court is not going to keep [this case] on the docket five years more,” Lee said.
CACI, too, has argued against handling depositions through videoconference.
“While they avail themselves of the legal system of the United States, they seek license to do so only from Iraq,” the company said of the plaintiffs in court documents. “That is fundamentally unfair.”
Jonathan Turley, a George Washington University law professor who has handled national security cases, said employing video seems a “reasonable alternative.”
“The argument . . . that a video trial would be unfair is rather mind-boggling,” he said. “The gross unfairness is, the United States is preventing witnesses from coming to the United States.”
The judge also heard CACI’s motion to dismiss common-law claims — as opposed to those claims brought under the Alien Tort Statute — filed by one plaintiff. The contractor contends that those claims should not be argued in Virginia because the allegations concern actions that occurred in Iraq and CACI is immune under Iraqi law.
The plaintiffs argued in court documents that CACI’s interpretation creates a situation “in which CACI, conveniently, is governed by no law at all and cannot successfully be sued anywhere.”