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Roderick Thomas Weighs In on Abu Ghraib Sovereign Immunity Ruling

Bloomberg Law
April 25, 2019

Roderick L. Thomas, partner in Wiley Rein’s White Collar Defense & Government Investigations Practice, was quoted in an April 25 article in Bloomberg Law on a significant and novel ruling made by a federal judge in Virginia last month stating there would be no sovereign immunity granted to a U.S. defense contractor for acts of torture that they allegedly committed in Iraq’s Abu Ghraib prison in 2004. The ruling is currently on appeal to the U.S. Court of Appeals for the Fourth Circuit.

According to Bloomberg Law, the Virginia judge’s sovereignty immunity opinion, if it stands, would remove a major roadblock for torture survivors seeking remedies against the U.S. government.

“If this opinion becomes the law of the land—and the higher courts will decide that question—it raises the specter of a wave of litigation,” said Mr. Thomas. “That litigation could be brought against the United States, whether or not government contractors are involved or alleged torture is at issue.”

Mr. Thomas noted that there is no doubting the universal condemnation of genocide, slavery, murder, and torture discussed in the opinion, but “an implied waiver of sovereign immunity for the indeterminate and evolving ‘fundamental rights of individuals’ certainly is fertile ground for litigation.”

“In perhaps a significant understatement in the opinion, the court notes that ‘the exact content of the set of jus cogens norms is debatable,’” Mr. Thomas said.

The article can be found here. (subscription may be required)