Outsourced Dirty Work and Legal Liability

The ACLU intends to file a lawsuit against Boeing subsidiary Jeppesen on Wednesday, on behalf of 3 alum of the CIA black sites who allege that the company aided the CIA in violating their human rights through its logistical support of CIA rendition flights.  This raises the larger question of legal liability for private intelligence companies that are now performing espionage functions on behalf of the CIA. 

Not everything outsourced to private intel corporations is as warm and fuzzy as support services for the NOC (nonofficial cover) program.  The nature of some of the outsourced functions formerly performed by Agency personnel is going to violate rights or else the companies will not be doing their jobs.

So will the corporations performing these outsourced services be liable under US law?

The ACLU seems to think so.  According to the International Herald Tribune:

The civil suit is to be filed in San Jose, California, under the Alien Tort Claims Act of 1789. This law specifies that U.S. government agencies and U.S. corporations can be held responsible for human rights abuses against foreigners resulting from activities in a foreign country.

I'm no legal expert, but the fact that this hasn't successfully been used against Agency employees makes me doubtful that private intel companies are trembling at the moment, but are taking comfort in the National Security Act of 1947 which created the CIA and gave it broad authorization to conduct the nation's dirty business.  Contractors most likely seek indemnification under PL 85-804/FAR 52.250-1  that allow for release of liability for national defense related functions that involve unusually hazardous risks.  Granted, it's a stretch to claim that arranging flight logistics is hazardous since it's all probably online and doesn't even risk an old-fashioned papercut.  More likely is that the government will find a way to shut down the action.  Still, it wouldn't be a bad idea to double check with counsel...

Comments

[krylon]

Two points:

First, I find it hard to believe that all the lawyers at Boeing did not perform an inquiry into how feasible a lawsuit of this sort would be long before the planes started leaving the ground.

Second, all the inquiries in the world aren't worth crap if you get a sympathetic trial judge. The trial judge will likely get overruled, but the appellate court will at least impose some structure while the ACLU will get attention drawn to the issue.

Public interest suits hardly ever succeed in tearing down walls overnight. Instead they just plink away until either enough attention is drawn that a new law is passed or a high enough judge gets a different idea of how things should work. This will be no different.