Business and Human Rights Journal

When corporate human rights respect conflicts with state

mandates: lessons from US homeland security contractors

Journal: Business and Human Rights Journal

Manuscript ID Draft

Manuscript Type: Developments in the Field

Government Contracting, Child Separation Policy, Zero Tolerance Policy,

Keywords:
Homeland Security, Complicity, Human Rights Due Diligence
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I. BACKGROUND

In July 2018, the United Nations High Commissioner for Human Rights spoke out

against a particular US policy implemented by contractors to the Department of Homeland

Security (DHS). The so-called “Child Separation Policy” mandated that infants and children be

separated from their asylum-seeking parents when they reached US borders and points of entry.1

He called it “government-sanctioned child abuse,” violating the rights of the child, freedom of

movement, and the rights of asylees. There was also the question of wrongful arrest and habeas
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corpus, because the children were jailed en masse, away from their parents. Condemnation of the

US Government for intentional human rights violations by the High Commissioner, not by a
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special rapporteur or country coordinator, is rare.

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Although this was a government policy enforced by DHS, private corporations acting as
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government contractors implemented it. Many of those companies had human rights policies that

required due diligence on their business relationships and that they respect human rights across
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their operations and contracts. This Note looks at how some (but certainly not all) of these
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companies subtly worked to shift US federal policy to better align with human rights.

II. THE CHILD SEPARATION POLICY

The Child Separation Policy, or, as it was formally termed, “Zero Tolerance,” aimed to

deter immigration at the southern U.S. border by criminalizing entry without documentation.

Asylum seekers who arrived at the border faced immediate criminal charges, rather than civil

1‘UN Rights Chief Slams ‘Unconscionable’ US Border Policy of Separating Migrant Children From Parents’, UN
News, (18 June 2018) https://news.un.org/en/story/2018/06/1012382 (accessed 19 November 2018).

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proceedings as had previously been done. This had a twofold effect. First, it required that they be

jailed before trial. Second, because families are not permitted to be jailed for extended periods,

children had to be detained separately from their parents.2 The result was the incarceration of at

least 2,737 infants, toddlers and children between the ban’s formal announcement in April 2018

and its reversal as unconstitutional in July 2018.3

III. PRIVATE SECTOR IMPLEMENTATION OF CHILD SEPARATION

In 2018, roughly one third of all the money allocated to the DHS was spent on private
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contractors.4 At airports, borders and detention facilities the US Government relies on private

entities to carry out operations, from providing biometric identification software to implementing
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physical security checks.5 At the southern border, private contractors run all the Immigration and
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Customs Enforcement (ICE) detention facilities.6 They carry out physical construction and
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supply everything down to the chairs and tables, working alongside federal employees to build

and maintain systems, dashboards, and protocols that both inform and drive decision-making.
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2 Jenny Lisette Flores v Janet Reno ‘Stipulated settlement Agreement’, Case No. CV 85-4544-RJK(Px), (12 August
1996).
3 Actual numbers are likely much higher than that, as the Office for Refugee Resettlement, tasked with housing

these children, reported major spikes in the arrivals of children through CBP a full year before the policy was
announced. They were given no information about the whereabouts of these children’s parents and only kept data on
them informally, through an ad-hoc Excel spreadsheet. Office of Inspector General. Separated Children Placed in
Office of Refugee Resettlement Care. Issue Brief for OIG of the US Department of Health and Human Services. 17
January 2019 (OIE-BL-18-00511) https://oig.hhs.gov/oei/reports/oei-BL-18-00511.asp
4 Homeland Security Today Reporters ‘DHS Spending Growing Proportion of Budget on Contracts’ (February 23,

2018) https://www.hstoday.us/federal-pages/dhs/procurement/dhs-spending-growing-proportion-of-budget-on-
contracts/
5 Kendyl Salcito, ‘Corporations Must Step Up to Protect Human Rights’, Inkstick Media, (10 October 2018)

https://inkstickmedia.com/corporations-must-step-up-to-protect-human-rights/ (accessed 15 October 2018).

6 CBP may run some of their own, but ICE does not

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They also provide strategy and advice on the implementation of those policies. Some even act as

contracted border guards .7

IV. B&HR IN FEDERAL CONTRACTS: RECONCILING HUMAN RIGHTS

POLICIES WITH CONTRACTUAL OBLIGATIONS (METHODS)

A. The (absence of a) legal case for prioritizing human rights in federal contracts

As media reporting exposed the nature and extent of the policy, business leaders began

speaking out. Yet few were representatives of businesses with government contractors.8 In the
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US it is difficult for federal government contractors to challenge the terms of their contracts on
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human rights grounds: they are beholden to the contracts they sign and face fierce competition

for federal contracts. Alienating the US government could devastate a company’s income.
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Additionally, contractors have broad impunity for the harms they commit in pursuit of the
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government’s agenda. For example, the Government Contractor Defense rests on the principle
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that the federal government’s unique interests preempt state tort laws that would impose a duty

of care on contractors.9 It builds on case law from the 1940s and 1950s extending sovereign
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immunity to federal contractors, referred to as the Derivative Sovereign Immunity Defense.10 One

7 Romo, V. Customs and Border Protection Paid A Firm $13.6 Million To Hire Recruits. It Hired 2. NPR 11
December 2018.https://www.npr.org/2018/12/11/675923576/customs-border-and-protection-paid-a-firm-13-6-
million-to-hire-recruits-it-hired
8 Microsoft and Cisco were the notable exceptions. Rodriguez, M. Business Leaders Denounce Family Separations

at U.S. Border. Fortune http://fortune.com/2018/06/19/business-leaders-respond-to-family-separations/

9 Boyle v United Technologies Corp. 487 US 500 (1988).
10 Yearsley v Ross Const. Co. 309 US 18 (1940) was another part of this progression, extending sovereign immunity

to a construction company that destroyed private land in pursuance of a federal contract to widen a river. Derivative
Sovereign Immunity has also been a key limiting factor on the applicability of the Alien Tort Claims Act (ATCA).
The ATCA held promise for alien victims of transnational corporations’ abuses committed abroad, but recent rulings
require that the cases “touch and concern” the US, while also safeguarding federal contractors from liability when
they act at the behest of the US government. The notable exception is al-Shimari v. CACI, an ATCA case charging
security contractor CACI with torturing detainees in Abu Ghraib. CACI called the ruling “unprecedented” and
threatening to upend 200 years of sovereign immunity law when the 4th Circuit found in April 2019 that the
contractor could be held liable on the grounds that, “There are some acts that are, as a matter of morality and reason,

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of those cases, the 1953 Reynolds ruling, held also that courts can refuse to admit crucial

evidence if “there is a reasonable danger that compulsion of . . . evidence will expose military

matters which, in the interest of national security, should not be divulged.”11 The Executive

Branch has repeatedly used this so-called State Secrets Doctrine to intervene in cases against

government contractors, forcing courts to dismiss based on lack of admissible evidence.12

Notably, this defense does not depend at all on the whether the government contractor violated

tort law, which is the question pertinent to human rights violations.

Not only are federal contractors largely shielded from legal liability; they are also often
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shielded from public oversight. Unlike the agencies that are their clients, federal contractors are
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largely exempted from the Freedom of Information Act (FOIA). Prevailing case law finds that,

unless the agency provides “day to day supervision” or has direct ownership of documents,
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contractors are exempt from FOIA requests.13

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The combination of legal impunity, broad opacity and intense competition for contracts
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generates strong disincentives for government contractors to speak out about government policy

decisions.
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B. The (Conflicting) Corporate Human Rights Policies Calling for Human Rights Respect

and Transparency

At the same time, many federal contractors have made public commitments to respect

human rights, including to demonstrate that their operations do no harm through public reporting

fundamentally wrong such that no state may authorize their commission nor immunize those involved in such acts
from liability.” CACI Premier Tech. Inc. v. Al Shimari, 4th Cir., No. 19-1328, brief 4/23/19
11 US v Reynolds 345 US 2 (1953).
12 See, e.g. Loeb, R and Kohse, E. Trump's DOJ to Assert State Secrets Privilege in Salim v Mitchell. LawFare. 24

February 2017. https://www.lawfareblog.com/trumps-doj-assert-state-secrets-privilege-salim-v-mitchell

13 Case law is extensive and thoroughly documented in Sekera, J. and Agostino, D. Freedom of Information Act

(In)Applicability to Government Contractors. Global Development and Environment Institute (GDAE), Tufts
University. September 2017. Available at: www.ase.tufts.edu/gdae/Pubs/rp/Sekera_FOIA_Report_2017.pdf

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on human rights risks. NomoGaia, a nonprofit research group focused on business and human

rights, sought to understand how those policies were implemented. Researchers selected 51

prime contractors representing 15% of DHS dollars allocated to companies, to ask how their

human rights responsibilities were being implemented. Contractor clients were Immigration and

Customs Enforcement (ICE) and Customs and Border Protection (CBP), the two DHS agencies

predominantly tasked with implementing the child separation policy.

Of the 51 companies contacted, 39 had human rights policies, 25 of which referenced the

UN Guiding Principles, the UN Global Compact, or the corporate responsibility to respect

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human rights. For these companies, policy adherence would require that they: (1) conduct due
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diligence on their operations and “business relationships” (e.g. federal contracts), and (2) be able

to publicly report on human rights risks identified.

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All 51 companies received the letter by email, telephone and social media (Twitter),
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asking:
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1. Does the company hold the position that DHS directives upheld human rights and, if

so, what processes did the company use to make that determination?
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2. What due diligence processes did the company carry out, or is it planning to carry

out, to evaluate risk that it might be involved in adverse human rights impacts due to

implementing DHS policies?

3. What were/are the findings of the human rights due diligence planned or carried out

(with a request for completion dates if due diligence is ongoing)?

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The aim was not to generate a statistical analysis but rather to snapshot the state of human

rights policy implementation in line with former Special Representative John Ruggie’s “know

and show” standard for human rights management (in contrast to “name and shame” campaigns

by activists).14

V. FINDINGS: CLOAKING GOOD PRACTICE

Although 12 of the 51 companies responded in some way, none provided substantive

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information about implementation of human rights policies (results are available in the Annex).

In this case, the companies contacted failed to show that they were carrying out their human
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rights due diligence on these US government policies that they themselves were implementing,
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despite the policy’s extremely public controversy over violations of fundamental human rights
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and the companies own commitment to respect human rights. Contractors to the federal

government may be reluctant to publicly criticize government policies; speaking out for human
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rights could jeopardize near-term contracts as well as nonpartisan reputations in a country where
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political power shifts frequently between Republicans and Democrats. As such, analysis of

human rights commitments must look beyond PR statements. In addition to tracking

correspondences with relevant contractors, we also tracked public activity, media reports,

financial statements and industry association releases. We found that, within several contractor

companies, investors, employees and business leaders themselves were achieving change despite

formal and outward resistance to human rights discussion.

14United Nations. (2011). Guiding principles on business and human rights: Implementing the United Nations
"Protect, Respect and Remedy" framework.
http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf

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A. Investors

Socially responsible investment organizations have become major agitators for human rights

among federal contractors. 15 In December 2018, an investor coalition submitted shareholder

resolutions to private prison companies CoreCivic and GEO Group, as well as to Amazon and

weapons maker Northrop Grumman, challenging them on their role implementing child

separation.16 The GEO resolution passed with over 80 percent of the vote in early 2019, and the

Northrop resolution gained the backing of some institutional investors despite ultimately failing.

Investor coalitions ramped up pressure in other ways, holding closed-door meetings with DHS
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contractors like General Dynamics and Microsoft and calling for more company transparency
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about involvement in policies that violate human rights.17

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B. Employees

Rights conscious employees added their own pressure. McKinsey employees successfully
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lobbied the high-profile consulting firm to end its own ICE contract a month before its scheduled
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completion, wholly on human rights grounds.18 Microsoft employees and managers publicly

urged their CEO to withdraw from an ICE contract and better vet contracts for human rights
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risks.19 In May 2019, Microsoft announced it had turned down a contract with a California law

15 Leslie Albrecht, ‘How investors are abolishing ICE — in their portfolios’, Market Watch, (6 August 2018)
https://www.marketwatch.com/story/opponents-fight-trumps-zero-tolerance-border-policies-by-moving-their-
investments-2018-07-31 (accessed 20 November 2018).
16 ICCR, ‘Corporate Support for Trump’s Zero Tolerance Immigration Policy Prompts Shareholder Resolutions,’

(18 December 2018) https://www.iccr.org/corporate-support-trumps-zero-tolerance-immigration-policy-prompts-

shareholder-resolutions-2019
17 Tri-CRI, ‘TriCRI Members File Shareholder Resolutionhttp://tricri.org/tri-cri-members-file-shareholder-

resolutions-with-amazon-and-northrop-grumman-on-immigrants-rights-concerns/; Investor Alliance for Human

Rights, ‘Investor Statement of Concern on The Increasing Harassment and Attacks on Human Rights Defenders’,
ICCR,
18 MacLellan, L. McKinsey & Co. will no longer work with ICE. Quartz Media. 10 July 2018

https://qz.com/work/1325101/mckinsey-company-employees-forced-the-company-to-stop-working-with-ice/
19 Sheera Frenkel, ‘Microsoft Employees Protest Work With ICE, as Tech Industry Mobilizes Over Immigration’,

New York Times, (19 June 2018) https://www.nytimes.com/2018/06/19/technology/tech-companies-immigration-

border.html (accessed 20 November 2018). s

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enforcement agency on human rights grounds. Tech workers have protested at company

headquarters and pledged not build databases to mobilize rights-adverse immigration policies.20

C. Industry Associations

Where shareholder and employee advocacy lags, some contractors have found avenues to press

for change through industry associations and multi-stakeholder initiatives. The Global Network

Initiative (GNI) weighed in publicly on the privacy violations of DHS policies in both 2017 and

2018, speaking on behalf of members.21 More strikingly, the US Chamber of Commerce also

vocally opposed the child separation policy. This was a powerful move coming from a lobbyist
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group that is so aligned with the Republican Party that it entirely ceased making donations to
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Democratic Party candidates in 2014. The Chamber called child separation a “contradiction”22 of

core values and backed up its call for to policy change with record spending on Democratic Party
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campaign spending in the 2018.23 Likewise, the US Business Roundtable, founded in 1972 by
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corporate CEOs “to promote a thriving U.S. economy and expanded opportunity for all
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Americans through sound public policy,” called child separation “cruel and contrary to American

values.”24 Its board of directors includes CEOs from JPMorgan Chase, GM, Oracle, AECOM,
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United Technologies, Lockheed Martin, Duke Energy, Boeing, WalMart, IBM, AT&T and

several other major corporations closely affiliated with or directly contracting with the US

20 Ibid.
21 GNI. GNI joins broad coalition opposing US Department of Homeland Security Social Media Password
Requirement Proposal 21 February 2017. https://globalnetworkinitiative.org/gni-joins-broad-coalition-opposing-us-
department-of-homeland-security-social-media-password-requirement-proposal/
22 Donohue, Thomas. Separating Children from Families Must End Now. US Chamber News Releases. 19 June

2018. https://www.uschamber.com/series/above-the-fold/separating-children-families-must-end-now
23 Open Secrets. US Chamber of Commerce: Party Split by Cycle. Accessed 12 June 2019

https://www.opensecrets.org/pacs/lookup2.php?strID=C00082040
24 US Business Roundtable. Business Roundtable Statement on Immigration. 19 June 2018.

https://www.businessroundtable.org/business-roundtable-statement-on-immigration; US Business Roundtable.

‘About Us’ page. Website accessed on 6 June 2019. https://www.businessroundtable.org/about-us

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Government. The statement may not seem bold on its face, but from an organization that named

only deregulation and corporate tax cuts as their priorities in early 2017, it marked a major shift

from business-as-usual.

VI. CONCLUSION

Companies fearing political retribution are not vocal about human rights, but some have

found novel ways to advocate for rights outside of the established frameworks. In conflict zones

and contexts of rights-adverse governance, individual companies can rarely offer full-throated
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advocacy for human rights. However, network-building with similar companies, coalitions with

vocal rights advocates (including shareholders), and amplification of employee sentiments can
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serve as proxies for direct corporate respect for human rights. In some cases, they have changed
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corporate behavior.
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Annex: Prime Contractors to DHS, human rights policies and responses to HRDD query]

Contractor HR Policy Response

Accenture "We support and respect human rights throughout our operations as reflected by our
longstanding commitment to the Ten Principles of the UN Global Compact"
AT&T "We are committed to respect basic human rights"
BAE "Our company is committed to respect human rights wherever we operate, within our sphere Forwarded. No further
Systems of influence." engagement.
Battelle None
Boeing "Boeing is committed to the protection and advancement of human rights in its worldwide
Company operations"
Booz Allen None
CACI "We support and defend the Constitution, and comply with the laws of the United States, " CACI does not condone or
Federal ensuring that we carry out our mission in a manner that respects privacy, civil liberties and participate in human rights
human rights obligations" violations. Nor does CACI make
public pronouncements or
respond to questions regarding its
clients or other Government
agencies, including for the agenda
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of organizations such as
NomoGaia – which appears to
have prejudged CACI in any
event."
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CHS None
Dell "We are committed to ensuring that we are not complicit in any human rights violations and
hold our suppliers and partners to this same high standard. Dell … believes businesses should
ensure that they are not complicit in human rights abuses."
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Deloitte "We respect human rights standards."

Services LP
Ernst & UN Global Compact ("Businesses should support and respect the protection of internationally
Young LLP proclaimed human rights [and] make sure that they are not complicit in human rights abuses.")
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FedEx None
G4S "G4S is committed to fulfilling its responsibilities on human rights in all of its companies around
the world by applying the United Nations Guiding Principles on Business and Human Rights
(2011) across all of our businesses."
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General "General Dynamics is vigilant in preventing human rights violations." Referred to different personnel.
Dynamics
Geo Group "GEO's implementation of its commitment to respect human rights is a process that requires "As a three-decade long service
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ongoing assessment of its efforts, and continuous improvement." provider to the federal
government, our focus has always
been and remains on providing
high quality services that meet or
exceed the strict standards set by
the federal government, and we
have never advocated for or
against immigration enforcement
or detention policies."
Grant None "Professional standards prevent us
Thornton from commenting on specific
client engagements."
Harris IT "Harris, in collaboration with our Intermediaries and Suppliers, endeavors to achieve a Forwarded to Peraton, which
Services leadership position in our markets through the adoption of responsible management practices acquired government services. No
related to business conduct, human rights, and the environment" further engagement.
Herman "All employees are required to… Adhere to international human rights conventions"
Miller
Hilton UN Global Compact ("Businesses should support and respect the protection of internationally
proclaimed human rights [and] make sure that they are not complicit in human rights abuses.")
Holiday Inn "We support and protect human rights wherever we can."
HP "Our approach aligns with the UN Guiding Principles on Business and Human Rights and HP is a
Enterprise signatory to the UN Global Compact."

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Hyatt "In keeping with this mission, we respect fundamental human rights, as embodied in the
Universal Declaration of Human Rights. We believe that we have a responsibility to manage our
business in a manner that is consistent with fundamental human rights and we attempt to
foster similar ideals in those with whom we do business."
IBM US "Underpinning our corporate responsibility standards and practices is our dedication to respect
Federal human rights. IBM's stance on human rights is informed by international standards, including
the UN Guiding Principles on Business and Human Rights, the ILO Declaration on Fundamental
Principles and Rights at Work, and the UN Universal Declaration of Human Rights."
L3 "L-3 complies with all applicable laws and regulations, respects human rights, provides fair Sent back the code of conduct.
working conditions, and prohibits the use of any forced, compulsory, or child labor."
Leidos "Wherever we do business, we are committed to upholding the core values embodied in this Forwarded. No further
Code, which are influenced by, and reflect a respect for, human dignity and fundamental engagement.
human rights. Leidos has implemented policies and practices."
Lexis Nexus UN Global Compact ("Businesses should support and respect the protection of internationally Out of Office
proclaimed human rights [and] make sure that they are not complicit in human rights abuses.")
Lexmark "Lexmark upholds and respects international human rights standards as reflected in The
Universal Declaration of Human Rights, the United Nations Global Compact, the United Nations
Guiding Principles on Business and Human Rights, the International Labor Organization’s
Declaration on Fundamental Principles and Rights at Work and the Organisation for Economic
Co-operation and Development for Multinational Enterprises (OECD)."
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Lockheed "We will report periodically on our progress in upholding this policy and assess regularly "We appreciate the opportunity,
Martin whether changes are needed to ensure that we keep our commitment to good corporate but are going to decline the offer"
citizenship and respect for human rights."
Mantech "Suppliers must refrain from violating the rights of others and address any adverse human
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Int., Inc. rights impacts of their operations."
Microsoft "Our Global Human Rights Statement is itself grounded in the United Nations Guiding
Principles on Business and Human Rights, which establishes that in their work to respect
human rights, companies 'should avoid infringing on the rights of others and should address
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adverse human rights impacts with which they are involved.'"

Morpho "Safran defends the principles of the United Nations Global Compact concerning human rights, Out of Office
Detection labor, environment and the fight against corruption."
Motorola "Our Corporate Responsibility Business Principles are supported by our Corporate
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Solutions Responsibility Policy, Code of Business Conduct, our Environment, Health and Safety and
Human Rights policies, and our Supplier Code of Conduct."
Nestlé "By upholding international human rights standards, and continuous and consistent application
of our own policies, which are aligned with the UN Guiding Principles on Business and Human
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Rights, Nestlé can make a positive impact on all our stakeholders."

Northrop "Company policies, practices and procedures reflect a strong commitment to human rights as Called back with a commitment to
Grumman set forth in the Universal Declaration on Human Rights." follow up. Not fulfilled.
PAE UN Global Compact ("Businesses should support and respect the protection of internationally Referred to different personnel.
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proclaimed human rights [and] make sure that they are not complicit in human rights abuses.")
PWC None Referred to different personnel.
Radisson "Respectful of human rights, socially equitable and environmentally sustainable, Radisson
works to meet social and economic responsibility."
Raytheon "Ethics and Conduct to underscore our commitment to protection of human rights in our global Out of Office
business activities"
Red River None
Ricoh "We recognize respect for human rights as the basis of our social responsibility and will
Corporation continue to fulfill our duties to protect and promote human rights."
SAIC SAIC recognizes that we have a corporate responsibility to respect human rights in the
operation of our business."
Sentrillion none
Sprint "We acknowledge and respect the broad principles aimed at promoting and protecting human
rights as outlined in the Universal Declaration of Human Rights."
T-Mobile Only applicable to suppliers
UNISYS "Basic human rights should always be respected."
UPS "UPS supports the protection of human rights."
Verizon "We respect the broad principles in the UN Universal Declaration of Human Rights"
VF "All our significant investment agreements and contracts include human rights clauses or Out of Office
Imagewear undergo human rights screening, as defined in our Global Compliance Program."
Wildflower none
Xerox "Xerox commits to respect human rights"

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