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.
One can only hope that the Supreme Court will overturn the legal reasoning behind the 2-judge majority ruling of the Appeals Court, which essentially claimed that during wartime all private military and security contractors are immune from tort claims, despite violating state, federal and international law, acting contrary to U.S. policy, military regulations and policy, and committing alleged acts of torture and other human rights violations against civilian detainees. Judges Silberman and Kavanaugh found that, in essence, state tort law should not be allowed on the “battlefield” because it might interfere with the federal government’s ability to wage war. Setting aside the fact that torture and other cruel, inhuman, and degrading treatment of civilian detainees constitute war crimes even on the “battlefield”( an odd way to characterize a detention center) , the decision assumed a federal interest that has never been put forth by the federal government.
There is no indication that the Bush or Obama administrations ever sought such immunity for contractors under the pretense that tort claims would interfere with the executive’s foreign policy making authority or ability to conduct war. As Judge Garland wrote in his dissenting opinion, “The plaintiffs do not contend that the United States military authorized or instructed the contractors to engage in such acts. No Executive Branch official has defended this conduct or suggested that it was employed to further any military purpose. To the contrary, both the current and previous Administrations have repeatedly and vociferously condemned the conduct at Abu Ghraib as contrary to the values and interests of the United States. So, too, has the Congress.”
Six years on, and the United States still has a chance to reclaim its position as a leader in human rights. The victims of the heinous abuses at Abu Ghraib, many of whom still suffer from physical and psychological harm, are simply seeking their day in court, to tell an American jury what happened to them, and to put forward their case about the role of the contractors in their torture and abuse. Hopefully, the Supreme Court will allow them this opportunity. In addition, the Department of Justice should facilitate the plaintiffs’ quest for accountability, access to remedy, and justice. It should support the plaintiff’s filing so that Saleh et al v. Titan et al can be heard by a jury and, more broadly, it should continue to support the efforts of Special Prosecutor John Durham to review the detainee abuse cases and bring those responsible to justice.
Rebecca DeWinter-Schmitt is an Assistant Professor at American University’s School of International Service where she teaches courses on corporate social responsibility, human rights, and world politics. She also serves on Amnesty International’s Business and Economic Relations Group and consults with the organization on its campaign to ensure oversight and accountability for the private military and security industry.