U.S. appeals court sets dangerous precedent against victims of torture

September 20, 2009

by Lillian Tan, Corporate Action Network Intern

On September 11th, 2009, the U.S. Court of Appeals of the D.C. District ruled 2 to 1 to dismiss Saleh v. Titan, a lawsuit brought against CACI International, a private military and security company (PMSC), which alleged that CACI personnel participated in torture and abuse of detainees at Abu Ghraib. CACI was awarded a Department of Interior (DOI) contract to provide translation services at Abu Ghraib.

Judge Silberman, in his majority opinion, concluded that the plaintiffs’ state law tort claims under the Alien Tort Statute (ATS) were preempted by the Federal Tort Claims Act (FTCA). According to his interpretation of the FTCA, contractors operate under the same sovereign immunity as U.S. military forces since they share a “common mission” with the military. Susan Burke, one of the attorneys for the plaintiffs, stated in the September 12th, 2009 Washington Post article that the legal team will file for an en banc review of the decision by all nine judges of the Court.

If the Court’s ruling is not reversed, a dangerous precedent would be set in the U.S. judicial system that would make it extremely difficult for victims of human rights violations, like Saleh, to find relief. As things currently stand, federal criminal laws (18 U.S.C.) are not sufficient enough to hold contractors accountable for their actions.

The U.S. military greatly depends on PMSCs to support their operations in the “war on terror”, with the use of contractors in Afghanistan reaching a record high. In the Iraqi theater, contractors have been allegedly involved in a number of human rights violations, almost none of which have been prosecuted in Federal criminal courts. While there is a glimmer of hope now that the Department of Justice is finally spurring to action by appointing a special prosecutor to reexamine almost two dozen cases of detainee abuse that were transferred to the Eastern District of Virginia—some of which include abuses committed by contractors—this fact does not change that federal prosecutors would still have substantial hurdles to clear before obtaining a prosecution.

One of the hurdles is the paucity of legislation that would effectively allow for a criminal prosecution of contractors. Another is evidence; and yet another is the statute of limitations on cases of torture under federal criminal law, which are fast approaching expiration. Now with the decision from Saleh v. Titan, victims of torture and abuse are denied the option of civil litigation.

Judge Silberman writes that the plaintiffs will not be bereft of all remedies since under the Foreign Claims Act” (10 U.S.C. §2734) they can file claims to a commission composed of officers and employees of the U.S. Armed Forces.However, is that even an appropriate “remedy” for Saleh and the other plaintiffs who have brought grievous allegations of torture and abuse by contractors who “acted unlawfully and without military authorization”, as noted in the dissenting view of Judge Garland? Should such a precedent be set where plaintiffs such as Saleh are denied a civil law remedy, in effect barring them from a chance of vindicating their human rights with a speedy trial in U.S. courts of justice?