[Ppnews] Do Private Military Contractors Have Impunity to Torture?

[Political Prisoner News]

December 21, 2011
Outsourced from the Law
Do Private Military Contractors Have Impunity to Torture?

http://www.counterpunch.org/2011/12/21/do-private-military-contractors-have-impunity-to-torture/

by LAURA RAYMOND

Unbelievably, in 2011 this question has not yet 
been settled in the courts of the United States. 
Human rights attorneys are headed back to court 
in the coming month to argue that, yes, victims 
of war crimes and torture by contractors should have a path to justice.

Attorneys from my organization, the Center for 
Constitutional Rights, along with co-counsel, are 
representing Iraqi civilians who were horribly 
tortured in Abu Ghraib and other detention 
centers in Iraq in seeking to hold accountable 
two private contractors for their violations of 
international, federal and state law. By the 
military’s own internal investigations, private 
military contractors from the U.S.-based 
corporations L-3 Services and CACI International 
were involved in the war crimes and acts of 
torture that took place, which included rape, 
being forced to watch family members and others 
be raped, severe beatings, being hung in stress 
positions, being pulled across the floor by 
genitals, mock executions, and other incidents, 
many of which were documented by photographs. The 
cases, Al Shimari v. CACI and Al-Quraishi v. 
Nakhla and L-3 aim to secure a day in court for 
the plaintiffs, none of whom were ever charged with any crimes.

The Department of Justice has thus far failed to 
prosecute any of the contractors involved, so the 
only path currently available for any 
accountability is through these human rights 
lawsuits.  However, after years of litigation, 
the allegations of torture by contractors in 
these cases have still never been seriously 
examined, much less ruled on, by the 
courts.  None of the plaintiffs in any of these 
cases has yet to have his or her day in court to 
tell their account of what they suffered. The 
reason is because the private military 
contractors have raised numerous legal defenses- 
many of which the plaintiffs’ lawyers have argued 
are plainly inapplicable to private 
corporations-which have kept the cases from 
moving into the discovery phase, where the nature 
of the contractors obligations, actions and 
oversight, as well as what happened to the 
plaintiffs would be examined in detail. So far, 
CACI and Titan/L-3 have focused the courts on any 
question but whether the plaintiffs were 
tortured. As CCR and co-counsel summarize the 
question in their brief in Al-Quraishi v. Nakhla and L-3:

Are corporate defendants entitled to categorical 
“law of war” immunity for their alleged torture 
and war crimes when such a proposed immunity runs 
counter to settled understandings of the law of 
war and centuries of Supreme Court precedent, and 
would give for-profit contractors more protection 
from suit than genuine members of the U.S. Armed Forces?

This week, CCR and co-counsel filed briefs that 
argue the cases must go forward. Additionally, 
yesterday a number of other human rights 
organizations along with a group of retired 
high-ranking military officers are filing 
supporting amicus briefs to add their voices to 
the chorus of concern over contractor impunity. 
The military officers’ brief argues that, “given 
that employees of civilian contractors 
indisputably are not subject to the military 
chain of command, and therefore cannot be 
disciplined or held accountable by the military, 
it makes little sense to extend to them such 
absolute tort law immunity for their misconduct.”

This legal battle is taking place as the United 
States is outsourcing war at a rate beyond 
anything ever seen in our history. During the 
wars in Iraq and Afghanistan the number of 
contractors has at times far exceeded the number 
of soldiers. Now, as the U.S. ends the war in 
Iraq, the State Department is reporting that it 
has been in the process of tripling the number of 
armed security contractors it will employ in Iraq 
to provide security for the thousands of State 
Department employees that will remain to work in 
what is now by far the largest U.S. embassy in the world.

It’s important for people to understand what is 
going on in the courts regarding this current 
litigation not only because the torture survivors 
need justice, but also because these cases have 
wide implications beyond this particular 
situation.  The corporations involved argue that 
they should be exempt from any investigation into 
the allegations against them because, among other 
reasons, our federal government’s interests in 
executing wars would be at stake if corporate 
contractors can be sued.  This is incredibly 
flawed logic; the lawsuits are for acts that are 
far outside the “laws of war” and these are 
crimes that are not in the government’s interest.

They are also invoking a new, sweeping defense 
that first appeared two years ago in a separate 
case CCR and co-counsel brought against these 
same corporations, Saleh v Titan. The new rule is 
termed “battlefield preemption” and aims to 
eliminate any civil lawsuits against contractors 
that take place on any “battlefield.” Among the 
numerous alarms this should set off is the fact 
that in the U.S.’ War on Terror it is argued that 
many places far from any actual warzone are now 
battlefields. Indeed, a detention center in Iraq 
filled with civilians who were never charged with 
any crimes, which is what we’re talking about in 
these current cases before the court, should not 
be considered a battlefield.   And acts of 
torture, which is what is at issue in these 
cases, cannot be characterized as “combat,” which is what this defense allows.

Think about what it would mean for private 
military contractors to be immune from any type 
of civil liability, even for war crimes, as long 
as it takes place on a so-called battlefield 
during this time of unprecedented use of 
contracting and when the term “battlefield” is 
being stretched to meaninglessness in the 
ever-expanding U.S. War on Terror. Anyone and 
everywhere could be a target. That is what is at 
stake here. Everyone who cares about human rights should be paying attention.

In giving their reasoning for dismissing these 
cases, the Fourth Circuit panel that originally 
heard the case (over a strong dissenting opinion) 
expressed its fear that cases like these would 
“undermine the flexibility that military 
necessity requires in determining the methods for 
gathering intelligence.” But this is exactly the 
point. No one should ever have the “flexibility” 
to commit war crimes, rape and other forms of 
torture. There absolutely must be consequences 
for these violations. If there are not, courts 
will essentially be saying anything goes – even 
the most sadistic and brutal torture – if you are 
a private military contractor.

LAURA RAYMOND is Advocacy Program Manager at the 
Center for Constitutional Rights.




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