Lawfare Archive: Accountability for Abu Ghraib

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1:06On March 12th, the 4th Circuit Court of Appeals upheld the jury verdict in Al Shamari versus CACI International, holding a government defense contractor liable for the torture of three Iraqi men at the Abu Ghraib detention facility in Iraq in 2004. The jury found that CACI conspired with US soldiers to, quote, inflict torture or cruel inhuman or degrading treatment. And the verdict awarded the men $42 million in damages. For today's archive, I chose an episode from December 23rd, 2024, in which Michael Posner joined Natalie Orpett to discuss the jury's verdict in Al Shamari, and how the landmark decision affects private companies, government contractors, and the future of human rights litigation. It's the Law Fair podcast.

2:07I'm Natalie Orpett, executive editor of Law Fair, 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. 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. Today, we're talking about a landmark verdict in the case of Al Shamari versus CACI, where a government contractor working with the US military and CIA was help liable for torture and human rights abuses at Abu Ghraib prison in Iraq back in the early 2000s. 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,

3:09which 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? 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,

4:11the 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 didn't 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,

5:12which included a number of things that here to four 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, 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. Right. And it's remarkable that Abu Ghraib actually had its height contained about 8,000 detainees. This was not a small operation.

6:18As 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 were being sexually humiliated, a human pyramid of naked men. 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? 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.

7:21And we recruited ultimately 50 retired senior military officers, generals and admirals, who appealed to Senator McCain, John McCain, a prominent Republican, prominent former military officer himself to challenge the Bush administration and this notion of enhanced interrogation techniques. It turned out that the uniform 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 to go 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 US government, you can no longer use these enhanced interrogation techniques.

8:23And 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, intelligence agents 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.

9:31And so we recruited the Dean of West Point and three interrogators to go to California and meet with the creators and writers of the show. By the time we did it, but 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 Americans 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 Wachuka. You're in Iraq now. Use your imagination. Do whatever it takes to get the terrorists 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.

10:37Their 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 is bad policy. It was bad law. It was ethically outrageous. And we paid a price for it. Absolutely. And as you just said, this was something that at the time was really authorized by law. This abu grave 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.

11:54And really letting these types of treatments run wild. So 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 grave were removed. And I think 11 or 12 of them were subjected to court's 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 US military do knowing that this base was controlled by the US Army and also actually was also being run in part by by the CIA. It was the CIA doing anything in response after this was all coming out. 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 US courts.

12:59And 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.

14:07And 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 as 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 khaki, I don't know what they call themselves, but a big private security firm.

15:11$7 billion 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. So as you say, the liability for the US government is really limited to what the US government wants to do for itself, because it's very difficult for individuals to bring claims against US 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 extra territoriality 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 others. 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 their being private entities accountable is very tricky.

16:32So tell us about this case. Who are the plaintiffs and when did they bring their claims and what is it that they were arguing? 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 toward action against people who are for acts that occurred outside of the United States that violate the law of nations.

17:34Again, those terms are quite vague. That term is quite vague. It was, it's set basically dormant for a couple hundred years. And then in 1980, the suit was brought against a Paraguayan police official for torturing a young man in Paraguay. The torture 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 have held 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. 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 US 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.

18:52This abuse of Iraqi citizens. So the plaintiffs are Iraqi, the action occurred in Iraq, but the ideas to use a federal court in the United States to hold them accountable and get compensation to the victims. So as I understand that 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? Well, at first they basically said that there were a range of human rights violations, violations of US and international law, including torture, cruel and human degrading treatment.

20:02I think they added war crimes, assault and battery, sexual assault, etc. Also, inflection 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 were carrying out these acts. 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.

21:09But in the meantime, the Supreme Court came out with the 2013 keyabell decision. Can you talk about what that did and its impact on this case? 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 statue were directed at security officials, the police 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 and Brooklyn against companies that did business in South Africa during apartheid.

22:13And 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 mobile oil and exon 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.

23:15And they rose through the courts. And Keobel 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 towards statute. So we've seen in that case in 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, to the private sector and especially to foreign companies is clearly disfavored by the current Supreme Court.

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27:35Download the Bleacher Report app today so you never miss a moment. And as I understand at the other aspect of key of all 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 Alshamari case that we're discussing today in the Alshamari case. Kaki did actually go forward after the key of all 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.

28:44Well I think the the the essential decision of the fourth circuit was that as a private contract or Kaki 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 or running a company your employees are basically on 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. 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. Right and I think a dispositive factor for the fourth circuit was that as a jurisdictional matter Kaki as a U.S. corporation and the employees involved are allegedly involved at this point were U.S. citizens.

29:58So under the test that keyabell 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 towards statute and from there there were multiple other efforts that Kaki brought to dismiss the case on additional grounds can you talk about some of those. Yeah you know the defendants in these cases always will say you know it's a form non convenience 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 what the facts really are in a foreign prison and a wartime situation.

31:02It's a political case in the 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 over came 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 foreigner domestic involving these human rights violations outside the United States is fair game. Keyabelle 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 US company and we're talking about US citizens being involved in the violation.

32:18And 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 Grey. But it also suggests an opening for other cases to be brought under this alien towards statute relating to foreign conduct by US companies and US based employees. 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 towards statute that were on direct liability kept the conspiracy kept the aiding and betting claims but did drop direct accountability so tell us about that what happened what was the basis of that.

33:32You 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 it's one thing to say that they were in the room that they were aiding and a betting what the military did or the CIA. It's another thing to say that they were directly implicated and khaki'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 the lawsuit in terms of this advisory role in terms of this aiding and a betting of what was clearly an illegal set of actions.

34:40Right 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's secrets doctrine there was this relationship as you are describing between the military which of course is outside of the reach of the ATS and and this particular lawsuit wasn't even brought against the US military. But the fourth circuit had expressly found in response to khaki's argument that you know we were acting at the direction of the US military and. Therefore can't be held liable the fourth circuit had said no that's not a plausible defense and the US military cannot direct contractors to perform unlawful actions. But of course the involvement and the sort of intermingling of the US government means that even throughout this private parties litigation the US government is going to have interests.

35:49So as I mentioned the state secret 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 impacted had on the litigation. 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 the subject the use of torture extreme interrogation by a senate intelligence committee chaired by Diane Feinstein hundreds of pages thousands of interviews etc.

36:55It 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'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.

38:07And 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. 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 were seeking some sort of discovery in order to make their case here it was invoked also against the defendants because khaki 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. And so that was something included among other things identifying some of the individual witnesses and the court found a work around 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.

39:32And so that was the case of the state's threatening national security but khaki 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. 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 khaki. 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 US was involved in things that everybody the irrational person knew crossed a line.

40:41And 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 was arrested at a hair airport and imprisoned in South Carolina. And his name is Padilla Jose 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 is 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. He's detained in the United States he was American citizen and he was charged with carrying a dirty bomb which the government never proved the Supreme Court is look for ways to kind of keep its hands clean. And so I think in denying served in this case that follows sort of the pattern we don't actually want to delve into these cases if we can avoid it.

41:51And I will say again with regard to the fourth circuit in the district court in this particular case it's much to their credit that they have you know push 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 skirt far away in a confined setting God knows how you go by gathering the you know despositive 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 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 us officials on how to get information by abusing people.

43:05I 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 await 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. Absolutely so we're 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 pre trial 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 forty two million dollar verdict.

44:15Again I need to say as a disclaimer I was not in the court I wasn't a party of the litigation as you say the first jury deadlock the second jury though you know made the decision that the defendants that khaki 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 twelve individual American citizens made a judgment that khaki's behavior was a violation of us law and a violation of the alien toward claims act and that's where we are. 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 obvious obviously we've touched on is just the continuing legacy of the war on terror and the abuses that it entails.

45:22It's been a very long road there 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. 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 knee sir square. There were 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 black water case not perfect lots of things still you know swept under the rug.

46:27Not enough accountability for the senior officials who created this whole system but I am an optimist I'm a chronic optimist and I would say the lesson is pretty clear here both to the US officials in the future but also the private security firm. 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 I coca it's the international code of conduct association for private security contractors it was the result of these actions. It was created as a way to have 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 interrogations attention use of child soldiers etc.

47:34So we are beginning to see as a result of all this both through the US 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. 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 khaki forty million dollar judgment. I coca now with the US 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 suggested in the future there's going to be at least the potential that people in these companies are going to say.

48:50You 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 in 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 madness who is very much in the camp I described military officials retired military officials who believe that abusive interrogation is bad for military discipline and bad for national security.

49:56So 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's a walk back from what now has been a clear line that we do not abuse people in US detention even in places all over the world where soldiers and intelligence agents are operating. 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 towards 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.

50:56Which was the Chiquita banana case that also returned a very high verdict that is of course not any national security framing directly didn't involve security contractors but was a private corporation as well and you've talked about you talked there and you and you just talked 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 towards 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 what is the world looking like from their perspective? 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.

52:17I'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 whereas 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 towards statute. Open question where that's going to go we have the two cases we've been talking about that should key to case from earlier this year and now the khaki case where courts have said they're still room to do this. But we also have a number of other countries that are getting into the axe 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.

53:28So I think there is a trend a broad trend maybe the US is not in the lead but there's certainly a greater sense that there needs to be some kind of jurisdictional basis so the companies don't operate rough shot 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.

54:35The 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 towards 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 work 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.

55:47Okay I think that's a great place to leave it Michael Posner thank you so much for joining us thank you for having me good to talk with you. The law fair podcast is produced in cooperation with the Brookings institution. You can get ad free versions of this and other law fair podcasts by becoming a law fair material supporter at our website lawfermedia.org slash support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts look out for our other podcasts including rational security, chatter, allies and the aftermath. Our latest law fair presents podcast series on the government's response to January 6. Check out our written work at lawfermedia.org. The podcast is edited by Jen Patia and your audio engineer this episode was good radio. Our theme music is from Alabama music. As always thank you for listening.

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