There are a lot of reasons to be frothing at the mouth angry at the criminal Bush administration. One of the biggest is the way that they not only managed to overturn a half century of certainty about what torture is and the use of it, in doing so they have also extended the immunity of those committing torture in the name of national security. The use of the State Secrets privilege to quash cases brought by torture victims was the standard operating procedure in the Bush administration.

It has sadly continued in the Obama administration. Without letting our current Executive Branch off the hook at all, it is easy to understand how that happens. How many of us have ever been willing to give up privileges we have, even if we are fairly sure it is not a good idea for anyone to have them? Since no one, not even the former V.P. Dick Cheney is the villain in the movie of their life, everyone thinks they will use these powers only for good.

This is why we need groups like the ACLU and the Center for Constitutional Rights to fight against the expansion of governmental power and accountability for any illegal acts the government might commit.

The CCR is filing for certiorari with the Supreme Court in the case of Saleh et al v. Titan et al. This case is a civil suit brought by 250 Iraqis and their widows against two U.S. contractors. The case revolves around the infamous Abu Ghraib prison in the early days of the occupation. The Iraqis are brought suit claiming that they were tortured by employees of Titan Corporation (which is now called L-3 Services, ever notice the worst offenders keep changing their names?) and a company called CACI International.

These two companies were hired by the U.S. Military to provide interpretation and interrogation services. The Iraqis claim all manner of abuse at the hands of the defendants including rape, beatings which resulted in the death of the detainees and having to watch family members suspended from a ceiling and beaten. The man who was hung from the ceiling and beaten died from this treatment.

What is interesting about this case is that they plaintiffs are being very clear in claiming that all this was done outside the direction of the Military and against its express orders and the statements of members of the criminal Bush administration. The reason for this is that while contractors have some shielding from civil suits when acting on their contracts with the government, that exemption does not extend to acts that are outside of the contract.

Or at least it did until the DC Court of Appeals ruled that all claims against the two companies should be granted summary judgment and dismissed. By a 2-to-1 vote the three judge panel found the companies where exempt for civil suits on the basis of exemption based on their being in “battlefield conditions”.

The dissenting judge, Judge Garland, wrote a 36 page dissent excoriating his colleges for their decision. The problem rests on the fact that the two judges; Judges Silberman and Kavanaugh (Kavanaugh was a protégée of Ken Starr and worked in George W. Bush administration before being appointed to the DC bench) based their decision on a case called Boyle v United Technologies Corp.

This case defined when the direct requirements of a government contract would allow the company to be exempt form civil suits for failing to meet State legal requirements. The two Judges found that under Boyle the contractors would be exempt form civil suits. The issue is that Judge Garland finds they are extending the exemption privilege in ways that Congress never wrote or intended, merely because the contractors where in a war zone. Judge Garland writes:

Boyle has never been applied to protect a contractor from liability resulting from the contractor’s violation of federal law and policy. And there is no dispute that the conduct alleged, if true, violated both.7 Hence, these cases are not “within the area where the policy of the ‘discretionary function’ would be frustrated,” and they present no “significant conflict” with federal interests. Boyle, 487 U.S. at 512. Preemption is therefore not justified under Boyle.

This is the meat of the issue. You see the Iraqi’s case has never been allowed to be presented nor has there ever been full discovery. They are merely trying to win the right to bring the case in Federal Court and let the wheels of justice turn as they may. The contractors, who if the allegations are true have committed heinous felonies, are trying to say that their actions can not be challenged in court just because they worked for the Federal government.

If the Supreme Court hears this case they will be deciding the level of shielding those contracting with the Military will have from acts that might be illegal. This is very important as we are currently using hundreds of thousands of contractors in our occupation of Iraq and our war in Afghanistan.

We have seen the problems that these quasi-military, quasi-private companies can cause with the callus acts of Black Water and their ability to play the cracks in the legal system to avoid accountability. No matter how you feel about the use of contractors (I hate it, think that it is completely wrong) there is a need to have control of their actions and accountability when they break our laws.

By carving out a new test for exemption which relies merely on the proximity of the contractors to the battlefield, we risk a situation where there can be no control or accountability for that actions of any group contracting with the military, regardless of the nature of the act. It should be pointed out that the actions L-3 and CACI are being sued over resulted in the court martial and conviction of several U.S. soldiers, including Lindsey England.

There can be no justice if victims of contractor’s actions can not sue for the very same acts which we prosecuted and convicted U.S. soldiers for. Justice rarely survives a double standard and this one hell of a double standard. The contractor’s are claiming that they have immunity because of the contract, even though the military says it never ordered these actions (which is probably not true, but that is the story they are clinging to) and prosecuted their own people over them.

It is hoped that the strong and persuasive dissent will entice the Supreme Court to hear the case. The outcome is never assured, but if they hear it then there is a chance people who were tortured and their widows will have the chance to make a claim against the companies who actually committed the crime.

Even if they win, it is unlikely that this will have pushed the bounds of Executive branch power back. Still every inroad we can make in trying to bring accountability to the actions of the government or its contractors is important in keeping the next overreach from happening and being normalized by use.

The floor is yours.

Bill Egnor

Bill Egnor

I am a life long Democrat from a political family. Work wise I am a Six Sigma Black Belt (process improvement project manager) and Freelance reporter for Govtrak.org

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