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Iraqi Torture Survivors Argue Appeals Court Has Duty To Hold Contractor Responsible

Attorneys for Iraqis tortured and abused at Abu Ghraib were in federal appeals court on May 12 to argue CACI International, Inc., should be held accountable for its role in unlawful conduct that occurred at the military prison.

Judge Barbara Milano Keenan of the Fourth Circuit Court of Appeals asked John O’Connor Jr, the attorney for CACI, how sexual assaults, beatings, threatening detainees with unleashed dogs, and chaining detainees to the bars of a cell could be considered lawful conduct. She also asked how the United States military could possibly have the discretion to authorize beatings or sexual assaults against detainees.

“If the military did not have the authority to authorize illegal acts—these acts of assault and sexual assault—how then are we required to say there’s a political question?” Keenan asked, referring to the argument that CACI is not liable because this is an issue for the executive branch to resolve.

The attorney for CACI conceded the conduct alleged by plaintiffs was unlawful, however, O’Connor insisted the abusive practices were “long in effect” at Abu Ghraib before “any CACI person showed up.” He added, “There’s no reason, if evidence supported, that the United States could not have prosecuted CACI personnel.” He mentioned how every CACI interrogator was a U.S. citizen and subject to laws, such as the Anti-Torture Act.

“It’s telling to us that, in one of the most-investigated events in the past few decades in American history, the United states did not see fit to prosecute a single CACI employee for acts at Abu Ghraib prison.”

Baher Azmy, an attorney for the Center For Constitutional Rights (CCR), who is representing Iraqi torture survivors, asserted if CACI were to win, it would essentially shield them from accountability for clear statutory violations of the law. In fact, there would be no civil or criminal distinction when it came to whether personnel should be held responsible for criminal acts.

The U.S. government may have chosen not to prosecute CACI interrogators, but Azmy noted the government filed an amicus brief in the court for this case, which stated the claims could proceed because the government had an “important interest in stopping torture.” A federal judge also recently issued a historic ruling against two CIA psychologists involved in developing torture techniques and rejected the argument that the matter was a political issue of which the courts should not intervene.

“We don’t believe that ambiguity can permit the kind of judicial abdication of its responsibility to interpret legal questions,” Azmy argued. “If it were true, equal protection and due process jurisprudence would not exist in this country and asylum law would be eviscerated. With respect to torture, the Supreme Court and District Court have already concluded that this is a specific, obligatory, and universal norm. Congress has codified the provision in the War Crimes Act, the Torture Statute, and TVPA [the Torture Victim Protection Act].”

If the district court’s prior decision were to stand, Azmy contended it would make the War Crimes Act and TVPA “non-justiciable,” which means violations of these laws would now effectively be beyond the purview of the courts.

The civil case brought by CCR has moved through the federal courts throughout the past seven to eight years. The case has been amended, appealed, dismissed, and reinstated. More recently, the U.S. District Court for the Eastern District of Virginia dismissed the case on June 24, 2015, after judges concluded the “political question doctrine” prevented the court from ruling on claims.

As described by Zachery Morris of the CCR, “The political question doctrine arises out of the separation of powers, holding that courts are only able to decide legal questions, while purely political questions are the responsibility of other branches of government.”

Essentially, courts take the view that a military decision to “attack a particular target on the battlefield during wartime will likely be unreviewable by the courts because military logistics fall within the president’s domain, and because there are not clear judicial criteria (what the courts call “judicially manageable standards”) available to judge the wisdom or correctness of the military’s decision to strike.”

The torture survivors maintain the military had no authority over CACI, which means the conduct of interrogators cannot be shielded from accountability by the “political question doctrine.” Evidence shows CACI was “required to assist, supervise, and monitor all aspects of contractor activities” and was “responsible for the supervision of all contractor personnel.”

According to Azmy, it does not matter if the survivors cannot specifically identify CACI interrogators, who were assigned to them. This is a conspiracy case with evidence that CACI was part of furthering a conspiracy involving assaults and sexual assaults, which plaintiffs suffered. The cooperation between CACI and military interrogators fueled torture and abuse at Abu Ghraib.

Investigative reports by senior military commanders have called attention to the “command vacuum at Abu Ghraib,” which led to a “lack of supervision of CACI interrogators.” This effectively enabled “sadistic, blatant, wanton criminal abuses.”

For example, Salah Al-Ejaili, one of the plaintiffs, was captured on November 3, 2003 because “he was a credentialed reporter for Al Jazeera.” He was not involved in any warfare against the U.S.

At what is known as the “Hard Site,” the lawsuit claims Ejaili was “subjected to repeated beatings, stripped and kept naked, imprisoned in a solitary cell in conditions of sensory deprivation, subjected to extremes of temperature, with both hot and cold water thrown on his naked body, placed in stress positions for extended periods of time, threatened with unleashed dogs, and deprived of food and sleep.”

“Although this is the fourth time our case has had to go to the Court of Appeals, I trust the American judicial system and I believe that I will achieve justice in the end,” said Ejaili. “We will have our day in court and the story of Abu Ghraib will be told by me and other men who lived – and – survived it.”

Azmy concluded, “There is nothing ambiguous about torture. It is clearly defined—and clearly unlawful—under domestic, military, and international human rights law. Given the worrying resurgence of Bush-era torture-speak, it is imperative that courts show that they will not treat torture with impunity.”


Note: Prior to addressing specific issues in the case, Azmy said, “This is in loving memory of a heroic human rights lawyer, Michael Ratner, who passed yesterday,” on May 11. For those unfamiliar with his work, a tribute to his life and legacy, which Shadowproof published, can be found here.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."