Do Private Military Contractors Have Impunity to Torture?

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 the 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.