Sosa V. Alvarez-Machain and Abu Ghraib-Civil Remedies for Victims of Extraterritorial Torts by U.S. Military Personnel and Civilian Contractors

I. INTRODUCTION The Abu Ghraib prison in central Baghdad has been called "one of the world's most notorious prisons" because it is where Saddam Hussein's regime tortured and executed countless Iraqi civilians.1 Unfortunately, it has also become notorious because of the abuse Iraqi prisoners received at the hands of U.S. military personnel and civilian contractors.2 Pictures of stripped prisoners forced into humiliating positions or threatened with dogs have become an all too familiar sight on the news and Internet.3 Many of the soldiers and reservists involved in the abuses at Abu Ghraib have been reprimanded,4 a number have pleaded guilty to various crimes,5 and Specialist Charles A. Graner Jr., the alleged ringleader, was recently convicted by a court martial and sentenced to ten years in prison for his participation in the abuse.6 All of this is certainly a necessary response to what happened at Abu Ghraib. Still, because court martial proceedings are essentially criminal in nature, they generally do not provide a civil remedy for victims.7 Not only would providing a civil remedy satisfy the victim's interest in being compensated for a horrible wrong committed against him,8 but because winning the hearts and minds of the Iraqi people is essential to the success of the United States' efforts in Iraq, providing a remedy for the victims of misconduct by U.S. personnel should be important to the United States.9 And given evidence of similar abuses by U.S. military personnel and civilian contractors10 at other locations throughout Iraq, in Afghanistan, and at Guantanamo Bay,11 the availability of civil relief for similar victims should be an important part of the United States' prosecution of the larger war on terror. On the other hand, providing civil relief against U.S. soldiers or civilian contractors accompanying the military is also problematic. After all, the United States really is at war, and some damage and disruption are inevitable. This Comment will argue that the United States should provide relief for the victims of the Abu Ghraib prison scandal, and will discuss the potential avenues that should be available to the victims and the limitations on those theories. Specifically, it will discuss the Foreign Claims Act (FCA), a quasiadministrative remedy created by Congress to provide compensation for damage arising from the noncombat operations of the United States military operating in foreign countries.12 Because there is anecdotal evidence suggesting that the FCA is often inadequate, and because the soldiers and contractors are immune under Iraqi law,13 it will also discuss remedies potentially available under U.S. law, including the Federal Tort Claims Act, the Alien Tort Statute, and the Bivens doctrine. Any discussion of civil remedies under U.S. law for extraterritorial torts by U.S. government employees or their agents is significantly informed by the recent United States Supreme Court decision in Sosa v. Alvarez-Mdckain, a case arising out of the kidnapping of a Mexican doctor by bounty hunters employed by the Drug Enforcement Agency,14 and brought under the Federal Tort Claims Act (FTCA) and Alien Tort Statute (ATS).15 Not only did this decision specifically limit the availability of the FTCA and ATS to remedy extraterritorial tortious conduct, but in intriguing dicta, Justice Souter suggested that the ATS should not "supplant[] the actions under . . . 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents16 . . . that now provide damages remedies for . . . violations" of the federal constitution.17 Of the statutory theories presented in Sosa and the constitutional theories hinted at in Justice Souter's opinion, the FTCA will not provide relief against the United States in its sovereign capacity, but the ATS and Bivens doctrine should provide a remedy against the individual soldiers and contractors who participated in the abuse. Part II will discuss remedies available under U. …