Lawfare Podcast – Lawfare Archive: Accountability for Abu Ghraib

Date: March 21, 2026
Host: Natalie Orpet
Guest: Michael Posner (Director, Center for Business and Human Rights, NYU Stern; Former Assistant Secretary of State, Bureau of Democracy, Human Rights and Labor)

Episode Overview

This episode revisits the landmark civil verdict in Al Shammari v. CACI International, where a government defense contractor was found liable for torture and abuse at Abu Ghraib prison. Host Natalie Orpet and guest Michael Posner dive into the long, arduous path to accountability, the legal pathways for holding private contractors responsible for human rights violations, the implications for corporate liability under the Alien Tort Statute (ATS), and how this case fits into the broader landscape of national security law and post-9/11 abuses. Posner provides expert historical context and legal analysis, as well as insights on the future of human rights litigation.

Key Discussion Points & Insights

1. Abu Ghraib: Historical & Legal Background

Time: 04:40–08:09

• The Context:
  After 9/11, the US adopted “enhanced interrogation techniques,” which included acts previously prohibited under US and international law (waterboarding, extreme sensory deprivation, etc.).
  Abu Ghraib, at its peak, held ~8,000 detainees and became infamous after 2004 when shocking photos of abuse were publicized.

• Impact on Culture & Policy:
  Michael Posner recounts the influence of shows like Fox’s 24, noting interrogators at Abu Ghraib mimicked TV torture tactics due to insufficient guidance and oversight.
  "They told me, forget about everything you learned at Fort Huachuca. You’re in Iraq now. Use your imagination. Do whatever it takes to get the terrorist to speak... My buddies and I went back to the barracks and we watched 24, and we imitated what they were doing on television." (Michael Posner, 11:29)

2. Immediate Reactions and Attempts at Accountability

Time: 09:12–14:47

• Military and Legislative Response:

  • Retired senior officers lobbied for change, leading to the Detainee Treatment Act, ending the use of enhanced interrogation.
  • The military held some low-level soldiers accountable, but there was reluctance to pursue senior officials or systemic responsibility.

• Failure to Prosecute High-Level Offenders:
  Posner describes attempts to hold senior officials like Rumsfeld and Cheney accountable, including lawsuits that ultimately failed:
  "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 CIA to really establish accountability." (Michael Posner, 14:47)

3. The Role of Private Contractors & The Path to the CACI Lawsuit

Time: 17:26–21:07

• Privatizing Abuse:
  The government increasingly outsourced intelligence and interrogation functions to private contractors, e.g., CACI, who became central figures in the abuses. "...we outsourced responsibility...to private individuals...private security firms, including...CACI...They were brought in as advisors to the military...to help figure out how to extract information." (Michael Posner, 16:30)

• Legal Hurdles:
  Victims sought accountability through lawsuits against these companies, not the government, under the Alien Tort Statute (ATS), facing a litany of procedural obstacles.

4. The Alien Tort Statute (ATS) and Jurisdictional Challenges

Time: 21:49–31:28

• Background and Scope:
  Originated in 1796 with vague intent, resurrected in the late 20th century to hold torturers and, eventually, corporations accountable for human rights abuses abroad.

• Key Litigation:

  • Kiobel v. Royal Dutch Petroleum (2013): Narrowed ATS’s reach, restricting actions against foreign corporations for conduct outside the US. "The Supreme Court, in quite strong language, says this is going farther than law should go...foreign defendant...should not be held liable using the jurisdiction of the ATS." (Michael Posner, 23:21)

  • Relevance for Al Shammari v. CACI: CACI (a US corporation) tried to invoke Kiobel to dismiss the case, but the Fourth Circuit held jurisdiction due to the US-based nature of CACI and its employees. “The essential decision of the 4th Circuit was that as a private contractor, CACI could be held responsible...Your employees are basically in a systematic way urging the US Government...to be systematically abusing these prisoners.” (Michael Posner, 30:29)

5. Obstacles to Litigation: Forums, Politics, State Secrets

Time: 32:19–41:57

• CACI’s Defense Tactics:
  Frequent attempts to dismiss the suit on technical grounds—forum non conveniens, political question doctrine, evidentiary obstacles—were repeatedly rebuffed.

• Interplay with State Secrets Doctrine:
  US government intervention complicated discovery and testimony, as national security concerns led to anonymous depositions and restrictions on witness identification.
  "The idea of State Secrets is to say, this is a national security issue...So that was another strain of this case, the government trying to basically prevent there being an open public hearing..." (Michael Posner, 37:53)

• Supreme Court Reluctance:
  Repeatedly, the Supreme Court found ways to avoid these cases:
  "The Supreme Court was always looking for ways to keep its hands clean...this was messy business. The US was involved in things that...crossed a line." (Michael Posner, 41:57)

6. The Verdict and its Impact

Time: 45:22–47:20

• Trial Outcome:
  After years of delays, the case went to trial twice—the second jury found CACI liable for conspiracy to commit torture and awarded $42 million to the Iraqi plaintiffs. - “The second jury...made the decision that...CACI had conspired with the military police...to set conditions for interrogation, which resulted in widespread torture.” (Michael Posner, 46:01)

• Significance:
  This decision represents the first US civil jury holding a government contractor liable for torture during the war on terror, suggesting private firms are not above the law.

7. Broader Implications and Future Trends

Time: 47:20–57:33

• On Security Contractors:
  This, combined with verdicts against other firms (e.g., Blackwater for Nisoor Square), signals to the industry that there are potential legal consequences for abuses committed abroad. “I would say the lesson is pretty clear here...to private security firms that there are some rules that apply...this is not a free ride.” (Michael Posner, 47:20)

• On Corporate Accountability:

  • The ATS remains limited but is not toothless against US corporations.
  • International trends, especially in Europe, suggest increasing regulation and legal exposure for multinationals regarding human rights. “If I’m a general counsel of a Fortune 500 company...I’m both thinking about the Alien Tort statute in the United States...the law in Spain or Germany or Britain...The overall trend is there’s going to be greater attention to these issues, greater public attention...but also two important legal constraints...the courts and this regulatory system that’s really evolving in Europe and...elsewhere.” (Michael Posner, 54:00)

• Final Reflection:
  While accountability for senior policymakers remains elusive, this case represents progress. Private actors—especially US-based—face increasing civil liability for international abuses.

Memorable Quotes & Moments

• On Pop Culture Influencing Interrogation (11:29, Posner):
  “My buddies and I went back to the barracks and we watched 24, and we imitated what they were doing on television...To us, it wasn’t entertainment.”

• On State Secrets and Suppression (37:53, Posner):
  “The CIA…went to extreme lengths to prevent even the disclosure of an executive summary of [the Senate report], which made a very clear case that this was a set of policies from the top, systematically applied.”

• On the Scope of Corporate Liability (53:40, Posner):
  “You can’t do that anymore…general counsel...is both thinking about the Alien Tort Statute… and ‘Oh my god, the Europeans are now regulating.’”

• On Judicial Courage (45:22, Posner):
  “It’s much to the credit of the federal courts...that they haven’t run away from this...the egregious conduct was so extreme, so clear ...I think offended the conscience of these judges."

Section Timestamps

• [04:40] – Historical context: Abu Ghraib and US policy post-9/11
• [09:12] – Public exposure, military and legislative pushback
• [14:47] – Complications of accountability: government vs. private actors
• [17:26] – Outsourcing interrogation: CACI’s role
• [21:49] – The Alien Tort Statute: history and claims in Al Shammari
• [23:21] – Kiobel decision and narrowing of ATS
• [30:29] – Fourth Circuit on US contractors and “touch and concern” test
• [32:19] – CACI’s multiple dismissal attempts
• [37:53] – State Secrets Doctrine and evidence obstacles
• [41:57] – Supreme Court’s reluctance to hear torture, abuse cases
• [45:22] – The trial(s) and verdict: $42 million for plaintiffs
• [47:20] – What this means for contractors and future cases
• [53:40] – Global trends in corporate human rights liability
• [57:33] – Closing thoughts and takeaways

Summary Takeaway

The Al Shammari v. CACI International verdict is a milestone in the decades-long pursuit of post-9/11 accountability. While top policymakers remain shielded, this case signals a shift: US courts—despite immense legal and political obstacles—are willing to hold private corporations liable for egregious human rights abuses committed abroad under color of government authority. The episode predicts growing corporate accountability for global human rights violations, both through American civil courts and a tightening web of international laws and regulations.