The Saleh torture case has unintended consequences

In the recent, little noticed, case of Saleh v. Titan, the Federal Court of Appeals for the Ninth Circuit dismissed a lawsuit against two private U.S. defense contractors, brought by Iraqi torture victims, saying the companies had immunity as government contractors. Is this the end of the story, or does it portend more to come? What are the facts, and what is the law?

The original plaintiff, Mr. Saleh, is an Iraqi-born Swedish citizen, previously imprisoned by Saddam Hussein, who escaped to Europe, and in 2003 returned to visit Iraq, where he was seized (wrongly, it turns out) and “detained� at Abu Ghraib prison. Mr. Saleh has been joined by other detainee plaintiffs with similar stories in a lawsuit initiated on the West Coast, and subsequently removed to the East Coast federal courts.

According to the class action complaint, the plaintiffs “were stripped, beaten, defiled and raped throughout their detention,� by both uniformed and plain-clothes personnel of the two defendant corporations. Acts of torture and abuse included use of attack dogs, electrocution, simulated drowning (“waterboarding�), as well as public bestiality beyond description in this article. None of these detainees has ever been shown guilty of — or even accused of — any wrongdoing. They were in the wrong place at the wrong time.

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The defendants are Titan Corporation headquartered in San Diego, Calif., and CACI International, headquartered in Arlington, Va., near Washington, D.C. They had contracted with the U.S. Department of Defense to perform a range of services for U.S. operations in both Iraq and Afghanistan. Both corporations have made enormous profits from the “wars� in Iraq and Afghanistan, demonstrating the benefits of a privatized military.

The defendant corporations have thus far failed to provide evidence to show that they did not flagrantly violate the U.S. Constitution, the Geneva Conventions, the International Treaty Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (1984), the Torture Victims Protection Act (1994) and the U.S. War Crimes Act (1996). Given the irrefutable evidence of war crimes on the part of the corporate defendants, what are the plaintiffs rights or remedies, if any?

Historically, foreign plaintiffs have generally not had standing to bring claims for “torts� (wrongs), and it is a long-standing principle that governments have immunity from such suits, unless the government grants specific allowance. The Saleh case, however, falls squarely under the specific allowance granted by the Alien Tort Claims Act (originally adopted in 1789), which provides that the federal district courts “have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States.� (See 28 U.S.C sect. 1350 (2000)). The Saleh case introduces a new species of ATC Act litigant: detainee victims of torture in Iraq and Afghanistan.

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The West Coast federal district court sought to avoid the substantive issue (liability for torture) by transfering the case to the East Coast district court and court of appeals — “for convenience of the litigants.� The Federal Court of Appeals for the Ninth Circuit has also sought to avoid the substance by finding, as a matter of fact and law, that all the acts of Titan and CACI were committed on behalf of, for and as agent of the U.S. government. The court admitted that had Titan or CACI exceeded their government-derived authority, they could be sued under the ATC Act, but since they did not exceed that authority, they shared government immunity, just as if they were the government itself.

This is an example of the law of unintended consequences. By shirking the substance in this way, the federal court has taken “judicial notice� of the fact that torture and prisoner abuse as committed by Titan and CACI were the official policy and practice of the U.S. government. It now becomes more difficult for future criminal defendants to deny this. The Ninth Circuit Court has thus unwittingly contributed to the future success of criminal prosecution, not only of the private corporate contractors, but also of military officers, the CIA and the entire chain of command of the Bush administration.

The Saleh case, seemingly so innocuous and inconsequential today, must have chilling implications for the likes of Bybee, Yoo, Addington, Sanchez, Miller, Tenet and Cambone, and also, one has to say, Rumsfeld, Cheney and G.W. Bush, at the apex of the pyramid of torture. There remain the questions whether investigation and prosecution for the crime of torture could be inevitable, or even possible, and could torture victims still be compensated?

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The United States is under an absolute legal obligation, under U.S. and international law, to prosecute any and all persons shown to have “engaged� in torture — whether as immediate torturers, commanders, supervisors or mere advisers (notably as “legal� counsel). Furthermore, of significant relevance to Saleh plaintiffs in their failed tort claim case, the “supreme law� requires that “victims of torture obtain redress,� and that they, their families or dependents (especially in cases of wrongful death) have, as the law puts it, “an enforceable right to fair and adequate compensation� by the U.S. government and, in this case, its agents, the private contractors. Thus the plaintiffs in Saleh may yet prevail, not in tort claims, but in the criminal courts of justice.

Saleh v. Titan does not close the door on litigation; it opens Pandora’s box and a “floodgate� of litigation. That’s what worries the courts, the administration, and the private contractors. For them, the Saleh debacle is a case of, as they say of fried fish in the culinary world, “out of the pan into the fire.� That must cause sleepless nights for many. Then must come the awakening.

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.