By Laura Raymond, Advocacy Program Manager at the Center for Constitutional Rights
Can you travel abroad, commit war crimes and then return home and continue on with your life as if nothing happened? If you are a corporation involved in war crimes abroad, can you continue to operate around the world afterwards, answerable to no one, reaping billions in profit as you go?
For the last thirty years, survivors of atrocities abroad turned to U.S. courts to press their demands for redress and accountability, invoking a U.S. law, the Alien Tort Statute (ATS). Today, the question of whether this vital pathway to justice remains available to survivors abroad is at the center of a lawsuit in Virginia. The case stems from one of the darkest moments in U.S. history: the horrific torture that was committed by certain U.S. forces and private military contractors at Abu Ghraib prison during the occupation of Iraq.
The four Iraqi plaintiffs - Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Hamza Hantoosh Al-Zuba'e, and Sa'ad Hamza Hantoosh Al-Zuba'e - were all detained without charge during the U.S. occupation of Iraq and all spent time in Abu Ghraib's notorious "hard site." At Abu Ghraib, they were subjected to acts of torture ranging from deprivation of clothing, food, water, and oxygen to tasering to the head, beatings that led to broken limbs and vision loss, and sexual abuse. Each of these men was eventually released from detention having never been charged with any crime.
Since 2008, they have been seeking some measure of justice in U.S. courts through an ATS lawsuit against CACI, the Virginia-based private military contractor hired to participate in interrogations at the prison and whose employees played a primary role in the torture of these men. The lawsuit sets out in great detail the conspiracy between CACI and some members of the military police to direct and engage in acts that an internal military investigation later found constituted "sadistic, blatant, and wanton criminal abuse;" this military investigation directly implicated CACI in these acts of torture.
However, this past June, the judge in the case dismissed the lawsuit "because the acts giving rise to their tort claims occurred exclusively in Iraq, a foreign sovereign." The judge stated that because of a recent Supreme Court ruling in a case against Royal Dutch Petroleum/Shell for violations that occurred in Nigeria, he could not hear claims brought by foreign nationals that took place outside the U.S. Then, to the shock of many, CACI - a multi-billion-dollar corporation - turned around and said that the torture survivors, who survive on very limited incomes in Iraq, owed CACI thousands of dollars in legal fees. Unusual as the request was, the court unfortunately granted it, with the plaintiffs ordered to pay CACI $13, 731.61.
Last week, the Abu Ghraib torture survivors, represented by the Center for Constitutional Rights and co-counsel, appealed the decision, challenging both the dismissal of the case and the legal fees. Among other factors, the appeal argues that Abu Ghraib should not be considered beyond the control of United States law, and Iraq in 2003-4 cannot be considered a typical foreign sovereign. The U.S. invaded Iraq, overthrew its government and created the Coalition Provisional Authority (CPA) which was answerable to President George W. Bush and directed by U.S. diplomat Paul Bremer. The CPA directed all aspects of the Iraqi government and Iraqi society, including its prisons.
The extent of U.S. control over the territory where the torture occurred and U.S. connections to the case more broadly were plainly laid out in the appeal:
"Plaintiff's claims are against a U.S.- domiciled corporation, whose U.S. citizen employees conspired with U.S. soldiers in one of the most notorious and internationally-condemned episodes of torture in U.S. history, which occurred in the U.S. controlled Abu Ghraib prison situated in territory subject to the plenary legal and political control of the U.S. government; which led to U.S. courts martial of the corporation's U.S. military co-conspirators; and where the U.S. corporations tortious conduct was overseen and facilitated by conduct within the United States..."
Now, six amicus briefs have been filed in support of the torture survivors' case, by legal scholars, human rights experts, retired military officers and other survivors of egregious human rights violations who have used the ATS to seek redress in U.S. courts. The brief filed by former military officers who wrote that they were concerned that if this dismissal was allowed to stand it would mean that, "no remedy exists in law for the alleged torture of foreign nationals by U.S. citizens in an area controlled by the U.S." Likewise, the group of survivors who found some measure of justice in U.S. courts wrote that if the judge's dismissal of Al Shimari was allowed to stand, "The number of atrocity survivors who would, as a result, be denied a day in court is startling."
This case is a concrete opportunity to reel in unchecked corporate power and to send a message that when you commit heinous crimes abroad you must answer for them, no matter how powerful you are.
We are not there yet.
In fact, the U.S. government continues to award CACI lucrative contracts; CACI just reported that it has received over $1.8 billion in contracts for the last three months alone and reported tens of millions in earnings last quarter. Worldwide, the private security and private military industry stands to be a $244 billion industry by 2016, as just reported by the United Nations' working group on mercenaries. Pursuant to this call, and in a show of the continued will of survivors of human rights abuses, grassroots groups and human rights advocates are currently gathering in Bangkok to strategize about effective avenues for achieving the right to a remedy for corporate human rights abuses.
Given the scale of the problem, we would all be wise to take stock of the perseverance of torture survivors who, despite years of dealing with physical and mental anguish from what they went through in Abu Ghraib, have continued to bring their case forward and expose the horror they endured. We should all be so committed to keep struggling for these basic concepts of justice and reparations.