By Douglas Gillison
It was at the time the largest group execution of the Iraq War: Twelve young men, including a father of four who was only 19, were slaughtered by armed insurgents carrying out what they called the “sentence of God,” for the crime of working for contractors on a U.S. military base.
The video by Ansar al-Sunna, broadcast internationally, reached family members, mothers and fathers who fainted and sobbed in horror. It showed the first victim slowly decapitated, his head toyed with in contempt, and the rest killed with rifle blasts to the head.
While Ansar al-Sunna killed the men, their families and the lone survivor of the group claimed that the American contractor, KBR Inc., had blood on its hands. They accused the company and its subcontractor, a Jordanian firm, of luring the men with the promise of high-paying jobs in Jordan, and forcing them into a combat zone against their will.
However, after more than five years in the federal courts, KBR on Wednesday won the first round of a legal battle in which it is accused of illegally trafficking 13 Nepali migrant workers to Iraq, including the 12 killed by Ansar al-Sunna.
The ruling, which could leave the victims with no apparent legal recourse, arises out of recent Supreme Court decisions which have limited the application of American law outside U.S. borders, notably curtailing corruption and human rights cases.
In finding in favor of KBR and the Jordanian company Daoud & Partners, which is also a contractor to the U.S. government, U.S. District Judge Keith P. Ellison in Houston said his hands were largely tied by the Supreme Court decisions.
A lawyer for the plaintiffs vowed to appeal.
Buddi Prasad Gurung and the surviving family members of 12 of his fellow Nepali migrant workers in 2008 sued KBR and Daoud, accusing Daoud of hiring them as cheap labor through a recruiting network that traded in deception, held them and transported them against their will to places where they were forced to work at great risk to their lives.
The men, ranging in age from 18 to 27, were lured from Nepal in 2004 by a local recruiting company which promised salaries of $500 per month, according to the complaint. Some were told they would work at a luxury hotel in Jordan and others that they would be sent to an American camp, which some took to mean they were bound for the United States.
A broker in Jordan then arranged for their transfer into the custody of Daoud, when they learned that they were in fact bound for al-Asad Airbase, Iraq, then a large U.S. military installation, and would only receive three quarters of what they were promised. The men were then allegedly held against their will, and told they could not leave as they had to work to repay brokers’ fees, ranging from $1,000 to $3,500 each, with interest rates running up to 36 percent.
It would take more than a decade for many Nepalis to earn $3,500, according to the complaint.
In August of 2004, Daoud allegedly transported the victims to Iraq in an unprotected convoy down the famously perilous highway to Baghdad. The two lead cars were then stopped by insurgents from Ansar al-Sunna, which captured all of the workers but Gurung, who was in a separate vehicle.
Their bodies were never found.
Buddi Gurung arrived at the al-Asad base, where he worked for 15 months for KBR loading and unloading goods at a warehouse and experienced mortar fire without protection. According to the complaint, both KBR and Daoud told Gurung he could not leave until completing his contract with them.
In court papers, KBR’s attorneys have denied that the men had been trafficked and claimed that the plaintiffs had offered scant admissible evidence to support their allegations. They also argued that recent Supreme Court precedent placed the entire matter beyond the reach of U.S. courts.
“KBR is satisfied that the district court has dismissed the plaintiffs’ claims against the company. Nonetheless, our hearts go out to the families of those who were killed while serving in Iraq,” said John Elolf, a KBR spokesman.
Elolf said that most of the families had received benefits under the Defense Base Act, a U.S. law providing workers’ compensation to civilian employees on bases outside the United States.
Attorneys for Daoud did not respond to a request for comment and attempts to reach the company were unsuccessful.
Ellison, the federal judge, said in Wednesday’s ruling that he was reversing a previous decision in August of last year in which he had allowed the plaintiffs’ lawsuit to stand, saying he now believed he had been in error.
The plaintiffs brought their claims under the Alien Tort Statute — an 18th century law used since the 1980s to permit lawsuits based on human rights violations outside the United States — the Racketeer-Influenced and Corrupt Organizations Act, known as RICO, and the Trafficking Victims Protection Reauthorization Act.
However, in a landmark decision of April last year, the Supreme Court unanimously found that a presumption against applying U.S. law outside U.S. territory applied to the Alien Tort law, which scuttled a case brought by Nigerian protesters against the oil company Royal Dutch Shell.
Known as Kiobel v. Royal Dutch Petroleum, the case has since caused the withdrawals or dismissal of a series of cases based on actions outside the U.S.
The case flowed from a 2010 decision, Morrison v. National Australia Bank, in which the court held that U.S. securities laws did not apply outside the United States and so could not be used by investors in Australia to pursue fraud allegations against an Australian bank which had bought a Florida mortgage servicer.
Initially, Ellison had ruled last year that these decisions invalidated the Alien Tort and RICO claims but allowed the human trafficking claim to stand.
But, in revisiting this decision on Wednesday, Ellison said that only in 2008 had the Trafficking Victims Protection Act been amended to allow “extraterritorial jurisdiction” for human trafficking. Prior to that date, the law had been silent as to whether Congress intended it to be applied outside the United States.
In light of Kiobel, Ellison said he was required to hold that the trafficking statute could not be applied to events occurring in Iraq in 2004.
“The court is concerned that the [trafficking statute]’s purpose will be undermined if the United States defendants escape liability so long as their acts of human trafficking took place outside of the United States prior to 2008,” he wrote.
Still, he could not distinguish the Alien Tort law from the trafficking statute when it came to “extraterritoriality.”
“This court must apply the same logic to claims brought by plaintiffs under” the trafficking statute, Ellison found, granting a motion for summary judgment as a result.
In a statement following the decision, Agnieszka Fryszman, an attorney for the plaintiffs, said they would appeal.
Ellison had already found “that sufficient evidence existed to show plaintiffs’ family members were victims of human trafficking,” said Fryszman. “The court also found sufficient evidence existed to show KBR was aware of and responsible for this illicit trafficking activity.”
“We believe the court misapplied Supreme Court precedent when it reconsidered and reversed its earlier decision, as the trafficking statute is explicitly extraterritorial.”
Daniel C. Richman, a law professor at Columbia University, said Thursday that Morrison and Kiobel had been read broadly to extend even to criminal prosecutions. With pressure from the Justice Department, Congress could be persuaded to make more statutes apply extraterritorially, he said.
“It’s not the end of an era but it certainly is the end of a chapter,” he said of the change brought about by Kiobel.
From 2004 to 2006, the height of the U.S. presence in Iraq. KBR was the largest U.S. government contractor, according to the Center for Public Integrity. At the height of the conflict, the numbers of so-called “third-country nationals” — or Bangladeshis, Nepalis, Sri Lankans, Indians, Ugandans and others hired as cheap labor — neared 200,000 employees, rivaling U.S. force levels in Iraq and Afghanistan.
By the final months of 2011, as the U.S. withdrawal from Iraq approached, there were 29,213 TCNs working in Iraq alone, according to a quarterly Defense Department contractor census. Troop levels in August that year stood at a comparable 46,000.
The migrants took low-paying jobs as cooks, cleaners, construction workers and fast-food servers, often finding themselves forced to accept unsafe conditions that amounted to “indentured servitude,” according a 2012 report by a Yale Law School human rights clinic.
In 2006, General George W. Casey, then the commander of U.S. forces in Iraq, said he had found evidence that contractors were illegally confiscating the passports of migrant workers, using deceptive hiring practices, charging excessive fees, offering poor living conditions and violating Iraqi immigration law. He ordered an end to the practices and required the resumption of mandatory training on human trafficking.
Beth Stephens, a law professor at Rutgers University and an expert on the Alien Tort Statute, said she felt that Ellison had erred in applying Kiobel, which concerned a Dutch company, to the actions of KBR, an American contractor.
The Supreme Court’s Kiobel decision, she noted, had involved questions of whether it would damage U.S. foreign relations to allow U.S. courts to expand their reach into the affairs of other countries. Here, just the opposite outcome could result, she said.
“I think that the applications of these principles against U.S.-based corporations is just wrong,” she said. “When it’s a U.S. corporation that does things as egregious and despicable as what is alleged in this case, it seems to me it would be bad for our relations to allow that.”