Can Iraqi Nationals Sue Defense Contractors for Abu Ghraib Abuses?

Today the U.S. Court of Appeals for the D.C. Circuit released its decision in Saleh v. Titan Corp., a suit by Iraqi nationals against two defense contractors that provided services at the Abu Ghraib prison facility. A divided panel held that the plaintiffs' state-law claims were preempted and affirmed the dismissal of their claims under the Alien Tort Statute. Senior Judge Silberman wrote for the majority, joined by Judge Kavanaugh. Judge Garland wrote a lengthy dissent.

UPDATE: BLT reports on the decision here.

The plaintiffs allege they were "beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison." Judges Silberman and Kavanaugh, obviously rejecting any impulse toward empathy, told them the courts of United States are closed to their claims.

Because these men are Iraqi, and not necessarily bound by American constructs of law or morality, is it inconceivable that they might adopted the form of international dispute resolution adopted by the administration these judges championed, and simply arrange to hurt or kill the men who abused them? (A rape for a rape, a beating for a beating, an electrocution for an electrocution is a moral standard holding some currency in the United States.) If they could make it back to Iraq before the United States apprehended them, or any of a number of other countries, it might be difficult for the United States to reach them.

If they were victims, I am not sure taking international justice into their own hands would be less moral than the conduct that resulted in the abuses these appear to be among. If you don't arrange a sensible release of pressure, eventually all hell breaks loose. For anyone who engaged in torture, a good night's sleep might not be warranted or sensibly available for decades.

The better course, of course, would be a moral response in the United States to this situation, but that appears to have been beyond the grasp of at least a couple of American judges with an unhealthy tolerance of torture.
9.11.2009 4:41pm
Dave N (mail):
The reason for the lack of empathy is found on pages 3-4 of the opinion:
The U.S. Army Claims Service has confirmed that it will compensate detainees who establish legitimate claims for relief under the Foreign Claims Act, 10 U.S.C. § 2734. Saleh pursued such a route, succeeding in obtaining $5,000 in compensation, despite the fact that the Army’s investigation indicated that Saleh was never actually interrogated or abused.
Even though on summary judgment the facts have to be looked at in the light most favorable to the non-moving party, the military findings do seem rather significant.
9.11.2009 9:40pm
I find it difficult to believe that the quoted passage motivated Judges Silberman and Kavanaugh. This was a summary judgment motion involving parties beyond Saleh, and the investigation had been conducted by a party unlikely to have been disinterested.

There's that, plus the entire careers of Judges Silberman and Kavanaugh.
9.12.2009 9:36am
Dave N (mail):
Ah, I see, thet are conservative judges. Ergo, they are bad. For most us, that kind of ad hominem approach is unpersuasive.
9.12.2009 10:21am
Conservatism isn't bad in a judge, nor is liberalism. What is terrible, and is perfectly apparent in this decision, is a "statist" view of government that underlies the decisions of some appelate jurists that the government can do no wrong, and the rights of persons to be free from government-sponsored torture are of no import.

Reprehensible, government-sponsored grievous actions against individuals comes with no accountability so long as it requires a jurist of this school to have any sort of spine (except for an occasional paeon to accountability through the political processs). In this case it came through an "administrative" process within the military itself - which, like the tribunals in Guantanamo - shows as much independence from the executive branch as the President's press secretary.

Failure to give seriously harmed individuals a fair hearing against government is one thing that my friends on the right, some of whom are in the "tea party" movement, and my friends on the left who view the government as beholden to corporate interests, seem to agree on. Each side as simply been politically sensitized to the same issue in a different context.

Its a sad day when more and more parties go before a jurist preestimating the result based on the judge's politics rather than the merits of the case. Its an even sadder day when commentators view this as normal, and attribute concern or disgust with this state of affairs as a question of politics.
9.12.2009 11:34am

Ah, I see, the[y] are conservative judges. Ergo, they are bad. For most us, that kind of ad hominem approach is unpersuasive.

They are not bad because they are conservative. This decision, however, is bad -- putrid -- yet, in light of the backgrounds of Judges Silberman and (especially) Kavanaugh, it was predictable.
Which, of course, might be the most important explanation of how a person with Judge Kavanaugh's resume finds himself on the federal bench.
The "reasoning" ostensibly underlying this decision exhibits the morality of a weasel (in Judge Kavanaugh's case, a newborn weasel).
9.12.2009 1:18pm
Mark N. (www):
The dissent here strikes me as somewhat persuasive as far as the government's interest goes. The majority opinion weighs heavily the deference due to national-security interests of the government in waging war. But as the dissent points out, the federal government itself has expressly disclaimed any such interest in this case, arguing that the contractors being sued were not acting pursuant to any military chain of command or governmental instruction, and may indeed be subject to civilian liability. I suppose it isn't impossible for the courts to find a government prerogative even where the government itself does not claim one, but it seems unusual.
9.12.2009 11:12pm

As Justice Stephens explained in his concurrence to Stenberg v. Carhart,

That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.

Given that Americans also have "liberty" to make war and to make choices in executing that war, is it possible to understand how the United States has any legitimate interest in requiring a soldier to follow any procedure other than the one he or she reasonably believes will best protect Americans in the exercise of that liberty?

Justice Stephens makes a strong argument that is unAmerican, unconstitutional, unjust, inconsistent with American liberty, to require or even permit a person charged with protecting critical American interests to be distracted from that charge by considerations of morality.

Justice had particular disdain for the idea that merely characterizing a procedure as "gruesome" is grounds for creating a distraction or intruding on practitioners' freedom of action to attend to what is important.

As Justice Stephens put it,

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows

The same idea applies here with equal force. War involves very gruesome procedures. If it's permissable to bury people alive in sand or firebomb them or use nuclear weapons, how can squeemishness be rationally justified for procedures which on their face don't seem any less gruesome?

People seem to want to justify intruding on the freedom of action of professionals based on a the same sort of emotional taboos and moral fastidiousnessness for which Justice Stephens showed so much contempt.

Is Justice Stephens right or is he not? Does moral progress mean freedom from traditional taboos about gruesomeness and grossness, as Justice Stephens has argued, or does it not? Is "ooh, gross!" a rational basis for legislation?
9.13.2009 2:15am

If they were victims, I am not sure taking international justice into their own hands would be less moral than the conduct that resulted in the abuses these appear to be among.

But of course doctors have ways of making sure subjects of procedures don't retaliate -- they finish the job. Obviously they have failures -- cancers can not respond to treatment and metastasize and make things worse, for examples. Abortions can be botched. But they don't tend to characterize such a state of affairs as the cancers or the fetuses "taking justice into their own hands."

One could characterize things this way, of course. But we generally say that when the term "person" as used in the Bill of rights does not apply, morality-type language simply doesn't apply. It's simply inappropriate to use it. Object, mechanism type language is what's appropriate. People who want to use morality-and-justice type language instead of machines-and-things type language are simply being conceptually inappropriate.

Thirty-five years of Supreme Court doctrine says so.
9.13.2009 2:26am
I disagree with Justice Stephen's views, of course. But the best way I can express my disagreement is to take them seriously.

Justice Stephens argued that when the Supreme Court held in Johnson v. Eisentrager that the term "person" as used in the Bill of Rights lacks "extraterritorial application", it was saying only that it had no jurisdiction over extraterritorial disputes. He argued that a later case overruled it.

But Roe v. Wade used the identical language, and indeed essentially the same reasoning as Johnson when it said the Bill of Rights lacks "prenatal application." And nobody considers this to be a holding that it has no jurisdiction over prenatal disputes. If it were, it could be discarded as a precedent as easily as Johnson -- and by the identical route.

Perhaps Justice Stephens will be taken seriously yet again.
9.13.2009 2:43am
I personally find your analogy strained and confusing, and your repeated misspelling of Stevens' name to be highly distracting.
9.14.2009 11:31am

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