Tuesday, May 22, 2012

As long as they have nap time, he's there





On this week's  Law and Disorder Radio, a weekly hour long program that airs Monday mornings at 9:00 a.m. EST on WBAI and around the country throughout the week (today on WBAI, Law and Disorder was a three hour live broadcast due to fund raising, we're dealing with the recorded program here), hosted by attorneys Heidi Boghosian, Michael S. Smith and Michael Ratner (Center for Constitutional Rights).  At the top of the show they discussed the issue of an Abu Ghraib abuse lawsuit.
Heidi Boghosian: Michael, we have a bit of good news.  A federal appeals court has revived two lawsuits by former Iraqi detainees claiming that civilian interrogators and translators actually participated in their torture at Abu Ghraib prison.  You'll remember Titan Corporation which is now called L-3 Services and Nakhla International were sued by the Center for Constitutional Rights.
Michael Smith:  On behalf of a number of people who are tortured -- I think seventy some.  The case was thrown out but then revived.  Appellate court said we just need more information before we can make a decision so let's not light the candles yet.  But this was a good development considering the Fourth Circuit isn't the most renowned in democratic liberties circles.
Heidi Boghosian:  And I think the point that we should be happy for is that it will allow the cases to go forward in the lower courts and allow the stories from the detainees can be made public.  Hopefully, some modicum of justice will result.
Michael Smith:  I totally agree. Anytime you can shine the spotlight of public opinion on these practices it's a win for the good guys.
The Center for Constitutional Rights presents a timeline and we'll note their description of the case:
Al-Quraishi v. Nakhla was brought against L-3 Services Inc. (formerly Titan Corporation) and CACI International Inc., the U.S. government contractors at Abu Ghraib prison and other facilities in Iraq, as well as former contractor Adel Nakhla. CACI International Inc. has since been dismissed as a Defendant in the case. The complaint alleges that L-3 Services and Adel Nakhla, a former translator employed by L-3 Services, directed and participated in torture and other illegal conduct  at prisons in Iraq, including Abu Ghraib prison in Iraq.
The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, charges Defendants with violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. Further, attached to most of these charges are counts of civil conspiracy and aiding and abetting. Through this action, Plaintiffs seek compensatory and punitive damages.
Among the heinous acts to which the 72 Plaintiffs were subjected at the hands of the Defendants and certain government co-conspirators were: rape and threats of rape and other forms of sexual assault; electric shocks; repeated beatings, including beatings with chains, boots and other objects; prolonged hanging from limbs; forced nudity; hooding; isolated detention; being urinated on and otherwise humiliated; and being prevented from praying and otherwise abiding by their religious practices.
The named Plaintiff, Wissam Abdullateef Sa'eed Al-Quraishi, a 37-year-old married father of three, was hung on a pole for seven days at the infamous Abu Ghraib "hard site" and subjected to beatings, forced nudity, electrical shocks, humiliating treatment, mock executions and other forms of torture during his incarceration at the prison.
Another Plaintiff, Mr. Al-Janabi, was repeatedly and gravely tortured at Abu Ghraib prison. Mr. Al-Janabi was subjected to various modes of torture, including having his eyes almost clawed out, being stripped naked and threatened with rape, being hung upside down until he lost consciousness, and being deprived of sleep for extended periods of time. Like the other Plaintiffs, Mr. Al-Janabi was released after enduring over ten months of torture and other abuse without being charged with any crime.
They also offer audio of the arguments made before the Fourth Circuit (presided over by Chief Judge William Traxler)  en banc panel.  We'll note three minutes of what those insisting what happened can't be heard in a US court.  The DC based Steptoe & Johnson LLP's J. William Koegel Jr., representing CACI, spoke first so we'll note him.
J. William Koegel Jr:  I'm Bill Koegel, your Honor, and together with my partner John O'Connor, represent CACI, the company retained by the United States [Government] to assist the US military brigade in conducting interrogations at Abu Ghraib prison in Iraq in the context of the Iraq War.  Today we ask the Court to reverse the unprecedented decision of the district court allowing aliens detained as enemies by the military on the battlefield in Iraq to pursue state law tort claims relating to their interrogations at Abu Ghraib.  There are three separate but, in this context, inextricably intertwined legal doctrines that support reversal. This Court has jurisdiction to reach each of those issues and it should do so because delaying review until the entry of a final judgment is going to imperil the significant federal interests that are at stake in this action.  I'm going to first address jurisdiction with respect to immunity and pre-emption, then turn my attention to jurisdiction with regards to the political question doctrine because there's an independent basis for this court's appellate jurisdiction in that respect.  The immunity and the pre-emption issues in this case are opposite sides of the same coin.  Both turn on a determination of whether the compelling federal interests in the prosecution of war as reflected both in the Constitution and in the Combatant Activities Exception to the federal court claims act set forth a federal policy that precludes the application of the state tort law employed by the plaintiffs here.  If the Court considers the tests for derivative absolute immunity as articulated in Mangold [v. Analytic Servs. Inc], it's easy to see how the resolution of that issue necessarily decides the battlefield pre-emption issue before the Court. We believe that the Court in deciding the immunity issue must by definition decide the battlefield pre-emption issue. Under the Mangold test, the Court looks first to the function being performed by the defendant and asks whether the function being performed by the government if performed by a government official would leave to the United States immune and, if so, whether the benefits of immunizing that function outweigh the costs?  This requires the Courts to examine the federal interest in the function.  Here the interrogation of detainees in a war zone. We submit and we believe the United States [Government] agrees that there is a compelling federal interest in conducting interrogations on the battlefield free from the interference of state tort law.
As disclosed before, I know Susan Burke of Burke PLCC.  She's one of the attorneys representing the Iraqis.  We'll note three minutes from her as well. 
Susan Burke: May it please the Court, my name is Susan Burke, representing with my counsel the torture victims. I'd like to just add a few points further to what my colleague has said about Judge Wilkinson's concern about discovery. What you're dealing with here is the defendants claim that they're entitled to go on a fishing expedition into government files in order to find some sort of justification for their illegal acts.  As a practical litigation matter they already had to have in hand whatever justification they had when they did it.  So therefore we would support, along with the United States, limitations on such kind of a fishing expeditions.
Justice Dennis Shedd:  But you assert, you assert there's a conspiracy with the military.
Susan Burke:  Yes, we do, your Honor.
Justice Dennis Shedd:  So why would they -- wouldn't they want to have a lot of discovery with a lot of  military to prove you're wrong on that point?
Susan Burke:  The reality is and if you look at the Saleh [v. Titan Corp] litigation itself, 18 months of discovery with no harm to the federal interests.  The United States Government as well as the District Court obviously are both well equipped to make sure that any of these interests that begin to intrude on the national interests of security are brought up by certification here.
Justice Dennis Shedd: When you go back, when you go back for discovery and the question is the scope of discovery and the question of we need to consider in how much discovery will or won't be limited, we have to think about the interests of the government in these combatant activities for contractors, you will say that is an issue we have to think about in the scope of discovery or you will say there is no such interest? 
Susan Burke:  Well we will say there is an interest of the federal government in ensuring that discovery does not burden the federal interest and if you look at what courts have done -- you can look, for example, at the United States --
Justice Dennis Shedd:  And you would then acknowledge the combatant activities? Whether you call that an interest or an immunity, you would acknowledge if the Court wanted to focus on that and do something to protect that interest you would say we do acknowledge that interest exists in the dynamic?
Susan Burke:  Your honor the United States Government has identified a series of interests all of which we acknowledge exists.  The paramount interest obviously is in preventing torture and that is why it is critical to go back for  discovery so that you don't inadvertently immunize private contractors who broke the law and who --
Justice Dennis Shedd:  But then --
Susan Burke:  -- should not enjoy any immunity.
Justice Dennis Shedd:  What's the answer to my question? If in discovery the question of do we need to protect the -- The government doesn't want to call it combatant activities but it's akin to that, it's that.  When that issues is raised and the court asks you what must be done to protect that interest if anything you will say there is an interest that needs to be protected?
Susan Burke:  Yes, your honor.
Justice Dennis Shedd:  Okay.
Susan Burke:  We would agree there is an interest that needs to be protected and the United States has several tools at its disposal -- state secrets and other tools to make sure that interest it is protected.
Justice Dennis Shedd:  But you -- but you would then acknowledge that there is a combatant activities interest?
Susan Burke:  No, your Honor.  What we would acknowledge is there is a -- as in all cases, there is a federal interest in making sure that classified information, information harmful to national security does not inadvertently come out through litigation.
There were other attorneys arguing.  Many of the justices ask questions and, if you're able to stream and benefit from streaming (meaning no computer issues and no hearing issues effect you), you should stream the whole thing.
Moving to Iraq where the government spends freely on everything but basic services for the people.  Jim Michaels (USA Today) reports, "The United States has agreed to sell unarmed surveillance drones to Iraq's navy as part of an effort to help protect that nation's oil exports amid growing tensions in the Persian Gulf and to strengthen U.S.-Iraqi ties." Just what Iraqis need to further endanger them.  'But they're unarmed!'  They're machines that give a false sense of infallibility.  Dropping back to Thursday's snapshot:
Today Mike Mount (CNN) reports that the attack decisions were based on "video surveillance provided by a U.S. drone"  and "The airstrike also raises questions on how U.S. partners use information given to them by U.S. drones."  Remember that as the government presses to distribute drones throughout the US.  35 people dead as a result of that 'intel.'
Drones didn't protect the 35 or reveal that they weren't 'terrorists.'  They were killed.  Based on 'intel' provided by a drone.  Meanwhile RIA Novosti notes, "Baghdad experts have discovered serious defects in the armored vehicles Ukraine has manufactored for Iraq, Ukraine's Segondya daily reported on Monday."


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