Pennoyer Fellow, Law and Security
Once again, the Obama administration shirked its legal and moral responsibility to ensure torture victims are provided an enforceable remedy when it advised the U.S. Supreme Court not to hear a case brought by Iraqi detainees tortured by private military contractors at Abu Ghraib.
The case, Saleh, et al. v. Titan Corporation, et al., is a civil suit brought by 250 Iraqi detainees for torture by U.S. private contractors CACI and Titan (now L-3 Services). The two companies were retained to provide interrogation and interpretation services at Abu Ghraib, the infamous Iraqi prison that the Department of Defense (DoD) reported was the site of "numerous incidents of sadistic, blatant, and wanton criminal abuses" of Iraqi prisoners committed by Americans under the authority of Americans. Army investigations implicated private contractors in the torture and abuse of detainees held there. While 11 soldiers were convicted on detainee abuse charges, no contractor was ever criminally charged.
In September 2009, the D.C. Circuit Court of Appeals dismissed the civil case on the ground that contractors involved in combat activities on a battlefield should be protected from lawsuits. The victims appealed to the U.S. Supreme Court, and Human Rights First submitted an amicus brief arguing that the decision by the D.C. Circuit to immunize the criminal conduct of private military contractors is incompatible with the United States' international legal obligations, including its obligation under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to provide "enforceable" or "effective" remedies to victims for acts of torture and serious abuse.
Before deciding whether or not to hear the case, the Supreme Court asked the U.S. government, which is not a party to the suit, its opinion or interest. Human Rights First sent a letter to the Acting Solicitor General urging the government to advise the Court to hear the case and reverse the decision that denies victims a remedy.
The Acting Solicitor General, however, did the exact opposite.
Eight months after the Supreme Court requested the government's opinion, the U.S. government submitted a brief telling the Supreme Court it should deny cert and leave the appellate court's dismissal intact. While acknowledging the appellate court ruling's shortcomings - that contractors cannot be "fully integrated" into combat and that torture by private contractors is a war crime actionable under U.S. law - the U.S. government largely aligned itself with the appellate court's majority position.
The government's brief asserts that it has a "variety of tools at its disposal" to punish people who torture and compensate victims, but it fails to mention not only that it has failed to enforce the applicable laws, but has also thwarted every effort by victims to seek legal redress. It also goes to great lengths to describe the number of steps the U.S. government has taken to improve contractor oversight, including barring contractors from performing interrogations. But improvement does not amount to accountability and it certainly does not provide victims an enforceable right to remedy. Indeed, the government's brief makes no mention of its obligations to provide torture victims an enforceable remedy under the ICCPR and CAT.
But even apart from its legal obligations, there are good reasons why the United States should as a matter of policy afford victims of torture a compensatory remedy. First, civil actions are a beneficial addition to criminal actions, which may alone not sufficiently create accountability for human rights abuses due to lack of will to prosecute. Second, monetary compensation provides victims of torture the necessary funds for treatment and rehabilitation. Third, the absence of an enforceable right to redress for serious crimes against civilians can only alienate local populations, which undermines U.S. counterinsurgency efforts.
The United States recognized that providing civil remedies for contractor abuses advances U.S. interests when it became a signatory to the Montreux Document on the Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, which recommends that States "provide for non-criminal accountability mechanisms for improper and unlawful conduct" of private contractors including, civil liability.
Moreover, the military has expressed its preference to rely on the existing structure of tort liability as a tool to deter contractor misconduct.
It's unclear whether the Supreme Court will follow the U.S. government's recommendation to not hear the case, effectively foreclosing any possibility that Abu Ghraib torture abuses will be remedied. But what is clear, is that the U.S. government is not serious about meeting its international legal obligations to ensure torture victims have such a right.
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