Appellate Court Reinstates Abu Ghraib Torture Lawsuit Against Private Military Contractor

October 24, 2016

A panel of the Fourth Circuit Court of Appeals reinstated a lawsuit  (Al Shimari v. CACI) brought by the Center for Constitutional Rights (CCR) on behalf of four Abu Ghraib torture victims against CACI Premier Technology, Inc., a private military contractor, for the corporation’s role in their inhumane treatment.  Reacting to this decision, Carr Center Senior Fellow Alberto Mora stated:

“The Fourth Circuit’s October 21st opinion vacating and remanding the trials court’s dismissal of the Al Shimari complaint — by which Abu Ghraib torture victims seek civil remedies from the contractor that allegedly inflicted the torture — represents a clear win for the rule of law and for the enforceability of the prohibition against torture.  Before this ruling, virtually all US federal courts asked to adjudicate claims brought after 9/11 by torture victims against the US government or its agents dismissed those claims as non-justiciable under the “political question doctrine. 

The reasoning in those cases was that direct or indirect military or CIA decisions — even the decision to apply torture — represented sensitive discretionary political decisions reserved to the executive branch by the Constitution which the courts are precluded from adjudicating.  This decision overturns that reasoning.  Succinctly put, the court held that:  first, Congress has established criminal penalties for the commission of torture; second, neither the executive branch (including the military) nor its agents has the discretion to order the commission of criminal acts, including torture; third, it is the duty of the courts to determine “whether the Executive has exceeded the scope of prescribed statutory authority”; and, lastly, the political question doctrine can not impede the adjudication of complaints alleging such unlawful activity.” 

According to Mora, “This ruling will in all probability lead to an on-the-merits trial of the allegations of torture.  The concurring opinion by Judge Floyd captures the spirit of the decision, although not part of the Fourth Circuit’s formal ruling.” In it Floyd stated:

“While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even the President to declare such conduct lawful.  The same is true for any other applicable legal prohibition.  The fact that the president — let alone a significantly inferior executive officer — opines that certain conduct is lawful does not determine the actual lawfulness of that conduct.  The determination of specific violations of law is constitutionally committed to the courts, even if the law touches military affairs.”

 “In other words,” says Mora, “the President or the President’s lawyers may have been of the opinion that certain conduct may not have constituted torture, but the final word on that determination will be left to the courts, not to the executive branch.  By this ruling, the Fourth Circuit decisively dismantles the shield of impunity that the Bush administration had erected around its use of torture and restores the protection of the law to those who were victimized by its use.” 

Mora was one of several third parties to file amicus briefs with the Fourth Circuit Court of Appeals in support of reinstatement.  U.S. military investigators had concluded that several CACI interrogators conspired with U.S. soldiers, who were later court martialed, to “soften” detainees for interrogations, and that this contributed to “sadistic, blatant, and wanton criminal abuses.” At Abu Ghraib, CCR’s four clients in the case were subjected to electric shocks, sexual violence, forced nudity, broken bones, and deprivation of oxygen, food, and water.

“The court can and must adjudicate the case,” had said Mora in his amicus brief. He added:

“Failure to do so would cause massive damage to our national identity and values, our laws and legal system, our foreign policy and national security interests, and to the architecture of international human rights. In the United States, our independent courts were founded on the proposition that they should neither be completely submissive to the military nor willing to become submissive by disregarding the clear mandates of the law. Whether this proposition continues to be true is put to the test in this appeal.”

The Carr Center’s Program on the Strategic Consequences of the U.S. Use of Torture scrutinizes the use of torture by state and non-state actors around the world. Our analysis includes, but is not limited to, the strategic consequences of the U.S. Government’s use of torture. A recent conference held by the Center, in coordination with West Point, brought together leadership from across the country to discuss these impacts.