“The most recent decision allows KBR to escape liability, claiming trafficking occurred outside of the territorial US.”
WASHINGTON — A federal judge in Texas has abruptly halted a long-running court battle brought by the families of 12 Nepalis killed while working for a U.S. military contractor in Iraq in 2004.
The families of the 12 men had been asking the courts to allow them to sue Kellogg, Brown & Root, the former subsidiary of the oil services company Halliburton. Last fall, Judge Keith Ellison had said he would allow the case to go forward, ruling that it appeared to include genuine allegations of “forced labor or trafficking.”
But last month, reportedly in a surprise to both sides, Ellison suddenly reversed his decision in the case, known as Ramchandra Adhikari v. Daoud & Partners. The judge stated that he had made a mistake in his legal reasoning, and that a central piece of anti-trafficking legislation, passed in 2008, could not be retroactively applied to a crime that took place outside of the U.S. The decision has been viewed as a major victory for KBR, with the firm’s lawyer proclaiming that the judge “did get this right.”
Other legal scholars disagree, however, particularly with Ellison’s interpretation of a contentious recent U.S. Supreme Court decision weakening corporate liability outside of U.S. territory. That decision remains heavily debated, and its evolving impact continues to be closely watched.
As for the Adhikari case, the plaintiffs’ legal team told MintPress that it will appeal the decision.
“Earlier … the court held that sufficient evidence existed to show plaintiffs’ family members were victims of human trafficking. The court also found sufficient evidence existed to show KBR was aware of and responsible for this illicit trafficking activity,” Agnieszka Fryszman, the plaintiffs’ lead counsel and an attorney with Cohen Milstein Sellers & Toll, a law firm known for taking on social justice cases, told MintPress.
“The court’s most recent decision allows KBR to escape liability on the grounds that plaintiffs’ claims involve trafficking that occurred outside of the territorial United States … [But] we are confident the appeals court will correct this misapplication of the law.”
The Nepali Embassy in Washington, D.C., told MintPress it was reviewing the judge’s decision but couldn’t offer a statement by deadline.
In 2004, 13 Nepali laborers were recruited to Jordan by a KBR subcontractor, Daoud & Partners, with most being told they were to work at a luxury hotel. Instead, Daoud allegedly confiscated their passports and transferred the men into a war zone, trucking them into Iraq in unprotected vehicles. There, they were to work for KBR at the Al Asad air base, at the time the U.S. military’s second largest base in Iraq.
En route to the base, the vehicles were ambushed by members of Ansar al-Sunna, a Salafist militant group that has since been renamed Ansar al-Islam. The militants kidnapped and subsequently killed 12 of the 13 Nepali men, explaining in a video released at the time that the migrants had been kidnapped “for their cooperation with the United States in fighting Islam.” A subsequent statement said the men had been killed in part for being Buddhist, though most of the men had typically Hindu surnames.
The men’s families, along with the one survivor, Buddi Prasad Gurung, allege that Daoud & Partners “established, engaged and contracted with a network of suppliers, agents, and partners in order to procure laborers from third world countries.” According to the judge’s brief, Gurung also says he was held for an additional 15 months against his will after the ambush, before finally being allowed to return to his home in Nepal.
Ellison’s decision to retrace his own legal logic, and ultimately to grant a summary judgment in favor of the defendants, rested on interpretations of two legal frameworks. The first is a 2008 law under which the plaintiffs were hoping to sue KBR, known as the Trafficking Victims Protection Reauthorization Act. The Adhikari case offers one of the first instances of the law being used to sue a corporation. The second was a Supreme Court decision handed down last year, known as Kiobel v. Royal Dutch Petroleum Co.
Based on his reading of the TVPRA, the judge needed to decide two things: first, whether the 2008 law could be retroactively applied to harms that took place in 2004. And second, whether Congress meant the law to apply to trafficking victims outside the U.S.
Ultimately, Ellison decided that these two issues were connected. While Congress did appear to have clearly meant for the TVPRA to offer protections to victims of international trafficking, he found, this extraterritoriality provision could not be retroactively applied to an instance of trafficking that had taken place four years earlier.
For part of this reasoning, Ellison relied heavily on the new Kiobel precedent, which significantly limited the reach of U.S. law overseas. KBR lawyers had argued that the decision had “watershed” ramifications for the Adhikari case. While Ellison initially disagreed, last month he changed his mind.
Yet much skepticism remains regarding the judge’s new legal reasoning.
“It was a surprise that Judge Ellison reversed himself like this. Neither side was expecting it. Just last October, Judge Ellison found that the anti-trafficking statute could apply retroactively to KBR’s conduct, and that Kiobel had no effect on the plaintiffs’ trafficking claims,” Tyler Giannini, the clinical director of the human rights program at Harvard Law School, told MintPress.
“That October analysis is right in my view. One of the purposes of the trafficking statute is to deal with international trafficking. In applying Kiobel to this statute in his January decision, he unnecessarily extended Kiobel, and I think there are clear grounds for reversal on appeal.”
Given that the Adhikari case is being appealed, it is unclear what effect Ellison’s legal reasoning will have on the broader ongoing analysis of the impact of the Supreme Court’s Kiobel decision. Nonetheless, the January decision highlights the deep and evolving implications that Kiobel has for the ability of victims of overseas abuses to seek justice within the judicial system.
“The full impact of the Kiobel decision remains to be seen,” Katie Shay, a legal and policy associate with the International Corporate Accountability Roundtable, told MintPress in December. “Lower court decisions are now percolating up through the system, and that will give more clarity. So far, some decisions have been allowed to go forward, but those cases have all been against individual defendants rather than corporations.”
Behind the army
Meanwhile, the federal government has long since declared its lack of liability in the case. In 2006, the Defense Department’s inspector-general found “the U.S. government had no jurisdiction over the persons, offenses, or circumstances that resulted in the Nepalese deaths.”
Despite this official shrugging-off of responsibility, it is in part because of the deaths of these 12 Nepali migrants that the government has moved in recent years to strengthen the safeguards that govern its use of foreign laborers – so-called third-country nationals – in its overseas operations. Particularly in the context of the wars the U.S. has spearheaded over the past decade, these numbers have been notably large.
According to a 2012 report by the American Civil Liberties Union and Yale Law School, U.S. military operations in Iraq and Afghanistan have relied “extensively” on contractors, which numbered some 174,000 in 2011. An estimated 70,000 of these were third-country nationals, a number that could have been as high as 100,000 at the height of the Iraq War. The report calls this massive number of behind-the-scenes workers as the “army behind the army.”
It also points to a series of new mechanisms established by Congress to ensure accountability among military contractors, including extending military and criminal jurisdiction to cover overseas military contractors. But it also warned that “Government agencies have yet to enforce these measures in any meaningful way. As a result, contractors continue to traffic and abuse [third-country nationals] with impunity.”
In September 2012, a month after the report came out, President Barack Obama signed an executive order that, among other things, requires so-called “prime” contractors – in the context of the Adhikari case, KBR – to take responsibility for ensuring that their subcontractors are not engaging in trafficking or forced labor. And in January 2013, Congress passed an annual defense appropriations bill that further institutionalized many of these new safeguards.
In April, the Alliance to End Slavery and Trafficking, a U.S. coalition of anti-trafficking groups, called on the federal government to adopt a series of new standards to further strengthen oversight of the contracting process.The U.S. “has the opportunity to set an international standard that could affect government procurement around the world,” ATEST wrote, “as well as setting a standard for business entities on a global scale.”