Retired Generals and Admirals Urge the Fifth Circuit Court to Hold Military Contractors Accountable for Human Trafficking

New York City – Human Rights First, representing a group of 11 retired generals and admirals, filed an amicus brief urging the Fifth Circuit Court of Appeals to grant jurisdiction in the case of Adhikari et al. v. Kellog Brown & Root et al (Adhikari) to hold military contractors accountable for crimes of trafficking young Nepali men to work on a U.S. air base in Iraq. The retired generals and admirals, including two former judge advocates general, argue that U.S. courts must provide a forum in which victims of human trafficking by U.S. contractors can seek justice.

“Contractors provide crucial support for the U.S. military and are perceived internationally as an extension of the military. It is vital to military interests and to the safety of military operations that contractors know they cannot traffic human beings with impunity,” wrote the generals and admirals. “Congress has provided remedies for these abuses by opening the courts to trafficking victims. To refuse trafficking victims that remedy would not only conflict with the principles our military fights to defend, but could undermine international confidence in the actions of our military and its employees. It is crucial to the national interest of the United States, and of its military, that trafficking victims have access to the remedies to which the law entitles them.”

The Adhikari case involves 13 young Nepali men who were trafficked toward a U.S. air base in Iraq to work for military contractor Kellogg Brown & Root (KBR). The men were hired under false pretenses and told they would receive jobs in the hospitality industry in Jordan or the United States. During transit, 12 of the men were ambushed by insurgents and brutally executed. Their murders were filmed and published online and on television, where they were seen by some family members of the deceased. The surviving man was brought to Al Asad Airbase, where he was held against his will and forced to work for KBR for months before eventually being allowed to return home. Despite these horrific facts, and multiple actionable legal claims, the district court held that various jurisdictional bars prevented it from hearing the case.

In the brief submitted to the U.S. Fifth Circuit Court of Appeals the retired generals and admirals challenge the district court’s ruling, arguing that that Congress created multiple statutes allowing courts to exercise jurisdiction over military contractors working for the United States abroad. The brief notes that as of August 2004 when the trafficking of these men took place, the U.S. military had already made it eminently clear that trafficking by contractors was subject to a zero tolerance policy. The U.S. military was engaged in a rigorous, worldwide anti-trafficking effort, and contractors knew that trafficking would undermine the military’s goals and principles. Furthermore, defendants’ human trafficking was wholly unlawful at the time that it occurred, violating state, federal, and Iraqi law. Thus, a 2008 amendment to clarify the extraterritorial application of the Trafficking Victims Protection Reauthorization Act (TVPRA) did not create a new cause of action.

The retired generals and admirals also make the case that U.S. jurisdiction is supported under the Alien Tort Statute because the United States exercised practical control over occupied Iraq, where the plaintiffs were trafficked, and over Al Asad Airbase, the destination of that trafficking, creating an area of de facto U.S. control. The courts have recognized that similar rules allow for an exercise of jurisdiction at U.S. embassies and U.S.-controlled areas like Guantanamo Bay, Cuba. Additionally, under the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), U.S. contractors that commit serious crimes abroad while employed by the U.S. military are subject to the same penalties as if they had committed their crimes in the United States. The crimes here, including violations of the TVPRA and the Racketeer Influenced and Corrupt Organizations Act, are statutorily serious crimes under MEJA and allow for precisely the sorts of civil damages that the plaintiffs in this case seek.

“A holding that U.S. law cannot apply to U.S. military contractors violating both international and U.S. law in U.S.-controlled territory … would establish an un-American lawless zone,” noted the generals and admirals.

Signers of the amicus brief include: General Charles Krulak, USMC (Ret.), Lieutenant General Robert G. Gard, Jr., USA (Ret.), Lieutenant General Charles Otstott, USA (Ret.), Rear Admiral Don Guter, JAGC, USN (Ret.), Rear Admiral John D. Hutson, JAGC, USN (Ret.), Major General Michael R. Lehnert, USMC (Ret.), Brig- adier General John Adams, USA (Ret.), Brigadier General Stephen A. Chen- ey, USMC (Ret.), Brigadier General David R. Irvine, USA (Ret.), Brigadier General Murray G. Sagsveen, USA (Ret.), and Major General Antonio M. Taguba, USA (Ret.).

Press

Published on October 2, 2015

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