Abu Ghraib Goes to Court
The world was so scandalized by the images of American soldiers forcing naked Iraqi detainees to pile into pyramids, leashing them and cornering them with dogs—not to mention the dead bodies flanked by men and women in camouflage giving the “thumbs up” sign—that the words “Abu Ghraib” will be forever associated with a sense of depravity and shame.
But nowhere to be seen in those photographs were the civilian contractors accused of setting the horror at the infamous Iraqi prison into motion, long before the scandal broke in 2004. These men managed to stay in the shadows, out of range of the camera, though subsequent military investigations confirm they were there all along.
These were the private contractors from CACI Inc., and Titan Corporation (later L-3 Communications), which provided interrogators and translators, respectively, to the prison. They were fingered as puppeteers of a kind in the Iraq War’s worst abuse scandal. According to testimony by lower-level guards from the 372nd Military Police Company who were convicted and did time for their role in the abuse, the guards were ordered by the private contractors working at the jail to “soften up” the prisoners, and were even given ideas of how to do it.
This was confirmed in the first official Army investigation by Maj. General Antonio Taguba, which examined the military police role, and another by Major General George Fay, which looked at the 205th Military Intelligence Brigade. Both criticized the contractors’ role on site.
The Taguba report names names, including CACI interrogator Steven “Big Steve” Stefanowiz, who became known as a ringleader, inspiring a newly installed Cpl. Charles Graner—yes, that Graner—to use a number of abusive techniques with the prisoners, including stripping them naked, forcing them to endure stress positions, and inducing sexual humiliation.
[Stafanowiz] Allowed and/or instructed MPs, who were not trained in interrogation techniques, to facilitate interrogations by “setting conditions” which were neither authorized and in accordance with applicable regulations/policy. He clearly knew his instructions equated to physical abuse.
But neither Stefanowiz, nor any civilian interrogator, was ever reprimanded, as recommended in the report, much less charged with any crime. Nine out of the 11 individuals convicted were non-officers, while one additional officer received a non-judicial reprimand and was relieved of duty and another faced a series of charges but was later acquitted.
Brig. Gen. Janis Karpinski, who had been commanding officer at the prison (and highest ranking woman in the war), probably took the biggest hit for the team—she was demoted to colonel in 2005 for an unrelated charge. She believes the demotion was political retaliation for her public view that the abusive practices were led by contractors and approved higher up the governmental food chain. This familiar but never officially prosecuted charge was bolstered by revelations in 2005 that former Guantanamo Bay commander Geoffrey Miller had instituted the same techniques at Gitmo (including the use of dogs and forced nakedness) before he helped set up detention operations at Abu Ghraib at the beginning of the war.
Many of the degrading and abusive techniques at Abu Ghraib—the beating, stress positions, protracted isolation, sleep deprivation—also mirror some of the CIA’s post-9/11 interrogation practices revealed in the newly-released executive summary of the Senate Intelligence Committee “Torture Report.”
“It’s been documented that the authority emanated from the highest level of government,” said Jonathan Hafetz, an associate professor of law at Seton Hall University and former senior attorney for the American Civil Liberties Union.
“Torture was official U.S. policy—and it played out in a number of different ways, including through abuse by private contractors.” But so far, critics like Hafetz lament, contractors have avoided culpability for their direct involvement in prisoner abuses, as alleged in the official Army reports.
They have not escaped entirely scot-free, however. Scores of former detainees have retained American attorneys and have taken the private military companies to federal district court, accusing both CACI and Titan of, among other charges, cruel, inhuman, and degrading treatment; torture; war crimes; assault and battery; sexual assault; intentional infliction of emotional distress; and aiding the military handlers in all of these crimes.
In 2013, Titan Corporation settled with 70 Iraqis for $5 million. CACI, however, which made billions in the war, has been steadfast in maintaining its innocence and has not offered to settle. They have fought various lawsuits all the way. Former CEO and recognized face of CACI, J. Phillip “Jack” London, wrote a book about it, called Our Good Name: A Company’s Fight to Defend Its Honor and Get the Truth Told About Abu Ghraib,in 2008.
A judge even ordered, upon CACI’s request, that the impoverished Iraqis suing the company in Al Shimari v. CACI pay the multibillion-dollar company’s legal fees—nearly $14,000—when the district court threw the case out in 2013.
In that decision, the court said it didn’t have the jurisdiction under the Alien Tort Act (ATS) to review the case, citing Kiobel v. Royal Dutch Petroleum,which held that the ATS only applies to conduct taking place in the U.S or on the high seas.
Forcing the Iraqis to pay CACI’s fees was only one indignity inflicted upon the abused. The court insisted that at least three Iraqis had to be in court for the case to proceed, but their attorney Baher Azmy of the Center for Constitutional Rights said at the time, “There is some inexplicable block by some agency in the U.S. government that’s preventing them from coming here.”
But now the tide has seemingly turned. The Iraqis got a boost last summer when the Fourth District Court of Appeals found that the Virginia District Court erred when it tossed out the case, and that Kiobel could not be so narrowly applied in Shimari, remanding the case back to Virginia.
On Feb. 6 of this year, both sides gave oral arguments to Judge Gerald Bruce Lee in the federal district court in Alexandria. CACI is now arguing that the “political question doctrine” immunizes them from suit, because the court is barred from second-guessing military command decisions in wartime. They also say that the military is immune from such lawsuits, so as agents operating strictly under the military chain of command, the private military contractor is exempt as well. According to this November filing by CACI’s lawyers, the military had controlled “all aspects of interrogations” at the prison and exercised “total control” over the CACI interrogators.
CACI isn’t the first contractor to use these arguments and surely won’t be the last. In fact, numerous lawsuits by not only foreign plaintiffs, but also American soldiers who feel they were harmed by private contractors in the warzone, are making their way through the system. Decisions in any one of them could have an impact on the others.
For example, just last month the Supreme Court declined a request by KBR Inc. and former parent company Halliburton to review two lawsuits against the private contractor relating to its work in Iraq. One is a class action suit by hundreds of veterans who say they were made sick by the burn pits under the purview of KBR, which had a waste management contract with the U.S. The other is a suit by the family of a soldier who was electrocuted in a base shower built by a KBR subcontractor in Iraq.
KBR, which has denied wrongdoing in both cases, has said it should be shielded with same immunity from lawsuits as the military, and is also protected under the same “political question doctrine” as CACI is using in the Abu Ghraib case.
While the District Court in each case agreed with KBR and granted dismissals, they were both overturned by the Circuit Court of Appeals. By refusing to get involved, the Supreme Court effectively sent the cases back to the District Courts, where the plaintiffs hope to get a trial.
“You cannot look at these cases in a vacuum,” says Steve Vladeck, a law professor at American University who has written extensively on contractor liability issues, including the political question doctrine and other defenses, at the Lawfare blog. “In all of these cases where you have private military contractors being sued in court for conduct in Iraq and Afghanistan they have invoked the same battery of defenses.”
The contractor lawsuits are taking place in a shifting gray area in which there is little solid precedent, but tiny convenient legal shelters into which companies are trying to hide, hoping the suits will go away. Will the political question doctrine and immunity argument be the sanctuaries they are looking for? Observers say there is no hard and fast litmus test, and like everything with war contractors, new cases seem everywhere, ready to set a standard.
Meanwhile, Congress has not stepped in to clarify the law as it applies to contractors in war, even as the U.S. government has outsourced more of today’s military operations to civilians than it has in any other conflict in its history. The question about what to do when those hired by the government are accused of abuse and negligence is something the Supreme Court may have to deal with more assertively, sooner or later.
As for the legacy of Abu Ghraib, the former detainees want their day in court, and for the time being, they are getting their wish.
“I think in general, the government’s record in prosecuting torture and other misconduct in Iraq and elsewhere has been extremely disappointing,” Hafetz tells TAC. “But contractors should remain liable, and I think that’s what the courts are suggesting here. They should be held to account.”
Calls to CACI and its attorneys were not returned, nor were calls to the Center for Constitutional Rights, which is representing the plaintiffs in Shimari v. CACI.