About Corporate Action Network

The Corporate Action Network includes members from Amnesty International USA's Business & Human Rights Group (BHRG), an expert group of volunteers who support the organization's work on corporate accountability for human rights abuses. Our current areas of work include: Extractives, Trade and Investment, Private Security Contractors, and Technology. BHRG members blogging include: Simon Billenness Tony Cruz Rebecca DeWinter-Schmitt Amol Mehra
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Failed accountability, WikiLeaks show true cost of war

The release by WikiLeaks late last week of 391,832 secret documents on the Iraq War has been said to be “…the most comprehensive and detailed account of any war ever to have entered the public record.” The revelations emerging from these documents showcase the culture of impunity that has plagued this war effort, including the U.S. government’s failure to adequately address rights violations linked to the corporations and contractors used to fight our wars.

As an August 22, 2006 report released by WikiLeaks stated

AFTER THE IED STRIKE A WITNESS REPORTS THE BLACKWATER EMPLOYEES FIRED INDISCRIMINATELY AT THE SCENE.

More than one year later, on September 16, 2007, Blackwater (now renamed Xe) guards, still benefiting from huge government contracts, shot and killed 17 Iraqi civilians in Nisour Square, Baghdad. This is just one example of many that can be found in the leaked documents.

It is clear that the record of unjustified killings and violence by PSCs is far beyond what had previously been released to the public. As it stands, none of these incidents has resulted in prosecution, and even those cases that have moved forward have resulted in dismissal or failure to indict.  Recently, a case against Andrew J. Moonen, a former Blackwater guard who was accused of killing a guard assigned to an Iraqi VP while wandering drunk in the Green Zone, was dropped by the Justice Department, citing difficulties in obtaining evidence in war zones, and the granting of immunities to the defendant by American officials at the scene.

Even the most public of cases, including that against Blackwater guards for the shooting of 17 Iraqi civilians in Nisour Square, have resulted in dismissals in US courts.  This culture of impunity extends across PSC activities.  On September 11th, 2009, the U.S. Court of Appeals for the D.C. Circuit in a 2 to 1 ruling dismissed a lawsuit brought against CACI International that alleged CACI personnel participated in torture and abuse at the Abu Ghraib prison.

By creating complex legal hurdles, issuing on the scene immunities, and failing to ensure an environment of transparency, oversight and accountability, we are shielding the true costs of our wars, not only financially but in human terms as well.  The release of these documents showcases just how terrible that cost is.

Let’s continue to call for accountability in conflict zones. Tell President Obama and Congress to respect human rights and counter terror with justice.

Yahoo – Poster Boy for Internet Censorship

By Tony Cruz, Business and Human Rights Coordination Group

Shi Tao

Yahoo – the company responsible for the 10 year prison sentence of Chinese journalist, Shi Tao – “should be held up as the poster boy of good behavior.”

And thus was the overall tone of the Yahoo Shareholder Meeting I attended on June 24, 2010.

For four years in a row now, I have attended these Yahoo Shareholder Meetings on behalf of Amnesty International. Accompanied this year by Amnesty International Field Organizer, Will Butkus, we set out with our remaining goal to keep the pressure on Yahoo to push for the release of Shi Tao.

Five years ago, Shi Tao sent an email to a pro-democracy U.S. website about the anniversary of the Tiananmen Square massacre; an email which would put Yahoo on the human rights violations map when it gave Shi Tao’s personal user information to the Chinese government.

During this year’s shareholder meeting, Yahoo CEO, Carol Bartz, remained adamant about Yahoo’s desire to move past this issue. In her mind, so it seems that Yahoo has done enough. Well, it’s not enough. The bottom line is that Yahoo turned over Shi Tao’s information to the Chinese government. They violated international human rights, and as Bartz said last year “they made a mistake”

Amnesty's William Butkis and Tony Cruz at the Yahoo! shareholders meeting

So Yahoo can try to spin this in their favor all they’d like, but the facts remain the same. As long as Shi Tao still sits in prison, then Yahoo hasn’t done enough to get him out.

Yahoo has powerful influence in China that it can leverage to ensure Shi Tao’s release. For starters, Yahoo can pressure Chinese Internet company, Alibaba – which controls Yahoo! China in exchange for Yahoo’s 40% ownership share of Alibaba. As one of the largest and most powerful Internet companies in the world, Yahoo even has influence with the Chinese government. And it is up to Yahoo to use that influence until the day Shi Tao is released.

Below is the conversation between Amnesty International and Yahoo CEO, Carol Bartz, at the meeting (listen to full webcast here):

Cruz: Hi, Ms. Bartz. Tony Cruz here with Amnesty International. I was here last year and brought up the issue of internet censorship and Shi Tao, and when asked a question about this issue, you were quoted saying “That Yahoo is not incorporated to fix China. I’m sorry. It was incorporated to give people a free flow of information and ten years ago the company made a mistake, but you can’t hold us up as the bad boy forever.”

I understand that whenever we come to these meetings it’s an inconvenience. By the time I came up to bat last year, there were two colleagues who spoke on this issue about Shi Tao. It’s an inconvenience and all I can say is you take that feeling of how you felt inconvenienced and that discomfort you felt and you multiply it by a million and it pales in comparison to what this individual must feel like being in prison now for 5 years of10 year sentence.

SEE THE REST OF THIS POST

Six years on Abu Ghraib victims still fighting for justice

By Rebecca DeWinter-Schmitt

Abu Ghraib will live on in collective memory as one of the biggest stains on the reputation of the United States as a supposed human rights leader. Who can forget the images that, despite their horrific nature, did not even begin to capture the full extent of the alleged abuse – including rape, sexual assault, beatings, prolonged stress positions, the use of dogs in interrogations and other forms of torture? Yet, six years on the victims of these human rights violations are still struggling to have their day in court, while the private military contractors involved – employees of CACI, Inc. and L-3 Communications (formerly Titan) – appear to be immune from criminal prosecution and civil lawsuits and continue to win multi-million dollar government contracts.

While a few of the soldiers implicated in the Abu Ghraib scandal have been held accountable, not a single contractor has seen the inside of a court room, despite the fact that several military-commissioned reports, including the Fay-Jones Report, confirmed that military contractors were responsible for the most serious abuses that occurred and recommended a civilian criminal probe and prosecutions. Instead, under the Bush administration, the cases of contractors implicated in detainee abuse were referred to a task force in the Eastern District of Virginia, where they were quietly dismissed or left interminably open. Existing U.S. law provides jurisdiction over contractor personnel for criminal offenses, such as torture. Some legal scholars have characterized the failure to prosecute as a willful decision to sweep contractors’ crimes under the rug.

With little hope for criminal prosecution of the perpetrators, hundreds of the victims of Abu Ghraib and other detention centers in Iraq, all of whom had been released without charge, have sought recourse to justice through civil litigation with the assistance of the Center for Constitutional Rights (CCR) and a small team of attorneys. The case, Saleh et al v. Titan et al, has been making its way through the courts for the last six years and is currently at a critical juncture.  On September 11, 2009, in a 2-1 decision, a panel of the Court of Appeals for the District of Columbia affirmed the dismissal of all claims against Titan/L-3, and, reversing a district court ruling, also dismissed all claims against CACI. The following January, the Court of Appeals for the District of Columbia Circuit issued an order denying plaintiffs’ petition for rehearing en banc, in other words by a full panel of judges. On Monday, April 26, CCR undertook the final available step; it filed a petition with the Supreme Court asking it to take up the case against Titan/L-3 and CACI and review the Appeals Court’s decision to dismiss the case.

SEE THE REST OF THIS POST

A real chance for accountability for private security contractors

At the end of December, the human rights movement had some disappointing news. Federal Judge Ricardo Urbina dismissed the charges against the five Xe (Blackwater) guards accused in the shooting death of at least 14 innocent Iraqi civilians in Nisour Square in September 2007.

While his decision indicates the need to examine more closely the conduct of the Justice Department’s prosecutors as well as the State Department’s practice of immunizing contractors’ statements given in the course of investigations, there is now reason for hope. On Tuesday, Rep. David Price and Sen. Patrick Leahy introduced companion bills under the short title of the Contractor Extraterritorial Jurisdiction Act (CEJA) of 2010 in the House (HR 4567) and Senate (S2979). The legislation closes gaps in U.S. law to ensure that contractors can be prosecuted for crimes committed overseas.

One of the single biggest hurdles to holding military and security contractors accountable for criminal acts committed overseas has been the duality of systems in place for Defense Department (DOD) contractors versus those working for other government agencies. DOD contractors implicated in crimes are subject, in theory, to the Uniform Code of Military Justice, the military’s judicial system, and the jurisdiction of federal courts by way of the Military Extraterritorial Jurisdiction Act (MEJA). But what about Blackwater, which was fulfilling the State Department’s Worldwide Personal Protective Services (WPPS) contract at the time of the Nisour Square shootings? Well, many feared that the Justice Department wouldn’t or wouldn’t be able to pull off a case against the shooters because of unsettled evidentiary and jurisdictional issues.

We – the human rights community, Congress, the President, the media, and othershave known about this inconsistent patchwork of laws for some time now. In fact, in 2007 Rep. Price and then-Senator Barrack Obama joined forces to try to amend MEJA to clarify that there would be no impunity for government contractors who commit crimes. While the House version of the bill passed with an overwhelming bipartisan vote of 389 to 30, it fizzled on the Senate side.

Two years on, we don’t need any more evidence to indicate the importance of acting decisively to make CEJA law. The DOS is about to release the Request for Proposal for WPPS III. In the upcoming weeks, we’ll be asking you to call on your members of Congress in the House and Senate to endorse CEJA and end impunity for rights violators. Let’s make sure that the framework is in place to hold military and security contractors accountable for human rights violations before we send out the next round of armed guards in the name of the U.S. government.

Google, Actions speak louder than words

Google made an unprecedented announcement this week by claiming it is no longer willing to continue censoring search results on Google.cn, its Chinese search engine. Meetings are underway with Chinese authorities to discuss removing filtering software from Google.cn and, the company further claims, if an acceptable agreement is not reached, Google may shut the search engine down.

Some in the media and some human rights advocates are heralding this announcement as a turning point in corporate America’s relations with China, given that Google attributes their sudden opposition to censorship is the result of a security breach of two Gmail accounts belonging to Chinese human rights activists.

But as Tom Foremski rightly points out over at ZDNET, a leading IT publication:

The question remains is why now? Google could have taken a stand on human rights in China on many occasions in the past.

Many Internet companies operating in China, including Google, have previously complied with the Chinese government’s censorship requirements. And this isn’t the first time that Chinese human rights defenders have been the targeted through their email accounts. Yahoo! handed over Shi Tao’s personal email records to Chinese authorities in 2004 which led to a 10 year prison sentence. He was targeted because of his effort to expose government-endorsed media censorship over the 15th anniversary of Tiananmen. More recently, the Chinese government blocked Twitter, Flickr, and Hotmail prior to the 20th anniversary of Tiananmen in June and attempted to mandate that all PC makers such as Hewlett Packard and Dell install software that filters Internet content.

Foremski also cites a Twitter feed from Guardian reporter Bobbie Johnson – who hits the nail on the head:

Goog [sic] acted after its rights were infringed, not the rights of its users.

That’s why AIUSA pulled out of the Global Network Initiative – a multi-stakeholder initiative – we joined in 2007, with the goal of establishing voluntary principles to promote and respect human rights on the Internet. We saw no tangible results.

We certainly welcome Google’s statements, but actions speak louder than words. And this is the internet company’s opportunity to be a leader. Google should stand with human rights defenders and support the Global Online Freedom Act (H.R. 2271) which could help IT companies resist information requests by the Chinese government.

By Tony Cruz and Anna Phelan, Amnesty International USA’s Business & Economic Relations Group

25 years later, Dow and India still failing the people of Bhopal

By Anna Phelan, Amnesty International USA’s Business and Economic Relations Group

Last week President Obama and Prime Minister Singh met to discuss U.S.-India relations; it was the first state visit of President Obama’s administration. According to news reports, the two heads of state discussed working together as natural allies on intelligence issues as well as energy security, clean energy, agriculture and climate change issues. Did President Obama use this opportunity to also address human rights concerns in India? And in particular, did they discuss Bhopal?

Twenty-five years ago, a toxic gas leak at Union Carbide’s pesticide plant in Bhopal, India caused more than 7,000 immediate deaths. Since then, 25,000 people have died and 100,000 suffer from ongoing health problems. Let me be more specific. The survivors and their children, a second generation of survivors, live with debilitating illnesses including cancer and birth defects. The plant site has not been cleaned up. Toxic wastes continue to pollute the environment and ground water. No one has been held accountable, despite years of legal proceedings in both the Indian and U.S. court systems. In short, survivors have been denied adequate compensation, medical care, rehabilitation of disaster site, and justice.

In India last week, the biggest daily newspapers — The Deccan Herald, The Telegraph, and The Times of India — all reported on the Indian government’s flawed decision to mark the 25th anniversary by opening the Bhopal disaster site to the public.

Government officials claimed they wanted to: SEE THE REST OF THIS POST

Blackwater accused of trying to buy its way out of accountability

On November 11th, 2009, the New York Times reported that in December 2007, top executives at Blackwater (currently known as Xe) authorized cash payments up to $1 million to Iraqi officials with the intent to buy silence and support from the Iraqi government over the Nisour Square shootings on September 16th, 2007, in which 17 Iraqis were shot and killed by Blackwater guards. The Times received this information from four anonymous former Blackwater executives. Two participated in talks about the payments and the other two had heard about the payments from other Blackwater officials. According to the executives, the payoffs were approved by then-company president, Gary Jackson. The money was sent to a top manager in Iraq and one executive stated that the intended recipients were officials in the Iraqi Interior Ministry in charge of operating licenses.

After the Nisour Square shootings, Blackwater came under plenty of heat from media and the Iraqi government, which wanted the contractor out of Iraq. For Blackwater, getting booted from Iraq meant potentially losing lucrative Department of State (DOS) contracts.

The four executives do not know if the bribes ever reached their intended recipients and it is unclear if a federal grand jury in North Carolina is investigating the matter. If it is found that Blackwater bribed Iraqi officials, those responsible could be prosecuted for obstruction of justice and violation of the Federal Corrupt Practices Act (FCPA), which prohibits bribes to foreign officials.

Blackwater seems to be synonymous with “bad news” but perhaps the worst news is that the company – despite a growing list of human rights violations and various misdeeds – is not being held to account but rather is still winning new contracts with the U.S. Government. Perhaps what makes Blackwater and other private military and security companies (PMSCs) so bold and reckless is the culture of impunity in which they operate. The U.S. Government did not create mechanisms of accountability and regulation to keep up with the booming industry. But this is one area of corporate accountability with a clear record – the FCPA is a proven tool leaving no excuse for prosecutors to turn the other cheek. All that needs to be done is for the relevant U.S. attorneys to investigate.

Nearly 100 Days of Pressure: Will Shell’s New CEO Come Clean on Niger Delta?

By Anna Phelan, Amnesty International USA’s Business and Economic Relations Group

Since the release of Amnesty International’s report Petroleum, Pollution and Poverty in the Niger Delta (30 June 2009), our global membership has acted to get Shell’s new CEO Peter Voser to come clean on the impacts of its operations in the Niger Delta, during his first 100 days on the job. Here’s one of my favorite actions:

Parisian AI-ers show Shell how to clean up

AI’s report looks at the impact of pollution and environmental damage caused by the oil industry on the human rights of the people living in the oil producing areas of Niger Delta. Some of the key concerns highlighted in the report focus on health and livelihood — the lack of access to potable water and damage to fisheries and local farming.

Shell was quick to challenge AI’s report, claiming that Amnesty International made no attempt at open dialogue with Shell and that the report contained no new insights. We set the record straight providing dates and evidence. Shell should not think its recent $15.5 million settlement in the landmark Wiwa v. Shell case remedies more than 30 years of environmental contamination and inadequate clean-up.

When will Shell do more? AI-France says that over 2,000 cards and 20,000 electronic postcards have been distributed, but the company has not heard appeals by Amnesty International. AI-UK’s Protect the Human blog says Shell has not responded to their 3500+ emails. AIUSA members can lend their support to this global action. Very simply, we’re asking Voser to clean up oil pollution in the Niger Delta, clean up Shell’s practices, and come clean on the information Shell holds on pollution in the region, but hasn’t made public.

:: Take Action Now. Tell Voser to come clean in the Niger Delta. ::

The reality is that Shell’s pollution and exploitation in the Niger Delta has created a hell on earth for the 31 million people who live in a region that’s home to one of the top 10 most important wetland and coastal marine ecosystems in the world. Voser’s 100th day as CEO of Royal Dutch Shell is October 8th. Remind him that we’re watching. Tell him to come clean on Shell’s pollution in the Niger Delta.

U.S. appeals court sets dangerous precedent against victims of torture

by Lillian Tan, Corporate Action Network Intern

On September 11th, 2009, the U.S. Court of Appeals of the D.C. District ruled 2 to 1 to dismiss Saleh v. Titan, a lawsuit brought against CACI International, a private military and security company (PMSC), which alleged that CACI personnel participated in torture and abuse of detainees at Abu Ghraib. CACI was awarded a Department of Interior (DOI) contract to provide translation services at Abu Ghraib.

Judge Silberman, in his majority opinion, concluded that the plaintiffs’ state law tort claims under the Alien Tort Statute (ATS) were preempted by the Federal Tort Claims Act (FTCA). According to his interpretation of the FTCA, contractors operate under the same sovereign immunity as U.S. military forces since they share a “common mission” with the military. Susan Burke, one of the attorneys for the plaintiffs, stated in the September 12th, 2009 Washington Post article that the legal team will file for an en banc review of the decision by all nine judges of the Court.

If the Court’s ruling is not reversed, a dangerous precedent would be set in the U.S. judicial system that would make it extremely difficult for victims of human rights violations, like Saleh, to find relief. As things currently stand, federal criminal laws (18 U.S.C.) are not sufficient enough to hold contractors accountable for their actions.

The U.S. military greatly depends on PMSCs to support their operations in the “war on terror”, with the use of contractors in Afghanistan reaching a record high. In the Iraqi theater, contractors have been allegedly involved in a number of human rights violations, almost none of which have been prosecuted in Federal criminal courts. While there is a glimmer of hope now that the Department of Justice is finally spurring to action by appointing a special prosecutor to reexamine almost two dozen cases of detainee abuse that were transferred to the Eastern District of Virginia—some of which include abuses committed by contractors—this fact does not change that federal prosecutors would still have substantial hurdles to clear before obtaining a prosecution.

One of the hurdles is the paucity of legislation that would effectively allow for a criminal prosecution of contractors. Another is evidence; and yet another is the statute of limitations on cases of torture under federal criminal law, which are fast approaching expiration. Now with the decision from Saleh v. Titan, victims of torture and abuse are denied the option of civil litigation.

Judge Silberman writes that the plaintiffs will not be bereft of all remedies since under the Foreign Claims Act” (10 U.S.C. §2734) they can file claims to a commission composed of officers and employees of the U.S. Armed Forces.However, is that even an appropriate “remedy” for Saleh and the other plaintiffs who have brought grievous allegations of torture and abuse by contractors who “acted unlawfully and without military authorization”, as noted in the dissenting view of Judge Garland? Should such a precedent be set where plaintiffs such as Saleh are denied a civil law remedy, in effect barring them from a chance of vindicating their human rights with a speedy trial in U.S. courts of justice?

Private military and security companies wanted for hire by CIA as "hitmen"?

by Lillian Tan, Corporate Action Network Intern

September 16, 2009 will be the second anniversary of the Nisour Square shootings, in which six Blackwater (now Xe) personnel shot and killed 17 Iraqi civilians outside Baghdad’s green zone. The bad media which surrounded the incident galvanized the U.S. Government to take some steps towards ensuring that the Department of Defense (DOD) and Department of State (DOS) better regulate PMSC operations in Iraq. But was it enough?

The six Blackwater guards who allegedly indiscriminately opened fire in Nisour Square on September 16, 2007 were finally indicted late last year. The trial hasn’t even started but Blackwater/XE personnel are already implicated in another incident. On May 5, 2009, four Blackwater/Xe personnel reportedly shot and killed two Afghan civilians in Kabul. So much for lessons learned in Iraq; so much for regulation, oversight, and accountability.

However, the U.S. government should not keep pushing aside the questions of how to effectively regulate and where to set the limits on using PMSCs — especially with the increased number of contractors flooding into Afghanistan in the wake of the planned surge in troops. The longer it takes for the U.S. government to finally take a position and answer these questions, the longer PMSCs operate in a legal limbo, in which they may commit human rights abuses with impunity.

Just recently, it has been reported that the CIA contracted Blackwater/Xe to assist in a secret assassination program of which the Congress was not even aware. According to the August 20, 2009 New York Times, “it is unclear if the CIA planned to use Blackwater/Xe to actually capture and kill Qaeda operatives, or just to help with training and surveillance in the program.”

The article also mentions that government officials are concerned about serious issues of accountability when contractors are brought into covert and lethal operations. Where there is no transparency, accountability will be near impossible if a crime were committed during those operations. The past administration has been quick to invoke several legal reasons to withhold sensitive information from the public — from the Glomar response to claiming that releasing detainee abuse photos would be against the Geneva Conventions. When the same photos were about to be released in May 2009, the Obama administration sought to block their release arguing that the images could further inflame anti-American opinion. If it is already this difficult to get information out of government agencies, then imagine the difficulty of obtaining information for the purpose of accountability when there’s a private contract involved in a sensitive national operation.

Another area of great concern that the New York Times article briefly touches upon is whether, aside from the concerns about accountability for PMSCs in such a program, PMSCs should be involved in the first place? As Senator Diane Feinstein (CA) aptly states, “It is too easy to contract out work that you don’t want to accept responsibility for”. In the debate about the use of PMSCs in modern warfare, there is the pressing question of what functions a government can and cannot outsource. In U.S. statute and policy, inherently governmental functions are loosely defined as “a function so intimately related to the public interest” that it must be performed by Federal employees. The list of functions that fall under “inherently governmental” is also extremely inconsistent, varying from agency to agency. Because of this lack of a clear and consistent definition, PMSCs are contracted to perform duties in highly sensitive areas such as intelligence and now, even assassinations.

To better regulate the industry, Congress also needs to pass legislation that will close the legal vacuum in which PMSCs are operating and appropriate more resources to regulation and oversight. The U.S. government currently does not adequately regulate the industry and its statutes to hold PMSCs accountable for crimes overseas are few. In its June 2009 Interim Report, the Commission on Wartime Contracting finds that U.S. government oversight of PMSCs is inadequate. Because they mostly operate transnationally, jurisdiction can become a problem. While PMSCs contracted by the DOD can be held accountable under the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ), contractors hired by other agencies such as the DOS often fall through legal gaps.

The foundation to improve regulation, oversight and accountability of PMSCs has already been set. To close legal gaps such as the one in MEJA, legislation has been proposed in the past and we look forward to similar legislation in the 111th Session of Congress. As for clarifying definitions of “inherently governmental functions”, a bipartisan Commission on Wartime Contracting was established in Public Law 110-181 to recommend among other things improvements in its Final Report on the “process for determining which functions are inherently governmental and which functions are appropriate for performance by contractors in a contingency operation, especially whether providing security in an area of combat operations is inherently governmental.” On an international level, the UN Working Group on Mercenaries (UNWGM) completed its two-week visit to the U.S. on August 3rd, 2009. During that time, the UNWGM met with the DOJ, members of Congress, governmental officials and public interest groups to discuss how PMSCs can be regulated on international, regional, national and local levels. Such efforts are all a step in the right direction.