11 May 2016
would decide whether the victims obtain compensation for their injuries and, no
less important, a measure of respect from the hands of American justice.’
Photograph: John Moore/AP
years ago American citizens and the rest of the world were rocked by the
graphic photographs of the sexual and physical torture at Abu Ghraib. Once
seen, the images are impossible to forget: the terrified prisoners, wide-eyed,
mostly naked; the pyramids of bodies; the dog-collared man on all fours led on
a leash; the hooded man standing on a box, arms spread as if crucified,
electrical wires dangling from his fingertips. And, in almost every picture,
the guards, looking on with a smirk.
counsel to the navy at that time, and an opponent of the Bush administration’s
use and rationalization of torture and inhumane treatment against detainees, I
watched Dick Cheney, George Tenet and others look on the laws that make torture
unlawful with that same smirk. GOP frontrunner Donald Trump and Senator Ted
Cruz, two torture proponents, follow in that tradition.
Do we want
our American courts to uphold this lawlessness? To join the torturers and their
enablers in smirking at the victims? So far, our courts have acted in just this
way, barring torture victims from pursuing civil claims.
about to find out if our courts will continue this injustice. On 12 May, the
fourth circuit court of appeals in Richmond, Virginia, will hear oral argument
in Al Shimari v CACI, an appeal from a civil case brought by the Centre for
Constitutional Rights on behalf of Abu Ghraib victims against a US-based
of the appeal will determine whether the case will be heard or dismissed
without trial. And a trial would decide whether the victims obtain compensation
for their injuries and, no less important, a measure of respect from the hands
of American justice.
If they do,
it would be a first. Most of the torture claimants (and none in the Abu Ghraib
case) have never been charged with involvement with insurgent activity, much
less terrorism. But despite this, and the US’s treaty obligation to provide
compensation to victims of torture, none have obtained a verdict since 9/11.
Indeed, no victim has even gotten a trial.
another CCR case brought against another civilian contractor which was settled,
all such cases have been dismissed before trial for a blend of reasons that
typically include the so-called “political question” and “state secrets”
doctrines – limitations the judicial branch puts on itself to avoid infringing
on military or foreign policy questions, among others.
includes the civil cases brought by two victims recognized, respectively, by
the Canadian parliament and the CIA to have been wholly innocent of any
terrorist activity. And this includes, too, Al Shimari, since its current
appeal is the fourth that plaintiffs have had to take to rescue the case from
dismissal, this time on political question grounds.
illustrates how dangerously broad and vague the political question doctrine has
become, and how little it ought to apply to cases dealing with torture.
Although the defendant is a publicly traded US corporation, the trial court,
applying the doctrine, dismissed the case because to try it “would require the
judiciary to question actual, sensitive judgments made by the military, which
the Court is not permitted to do”.
irrelevant finding, but it’s typical of the contortions courts have engaged in
under the political question doctrine to avoid adjudicating torture lawsuits.
courts have been mistaken to think that judicial abstention is mandated in such
cases. As a matter of law, torture has been categorically prohibited for
decades, a prohibition that has included the military. At Abu Ghraib, as was
true throughout the rest of Iraq, the Geneva Conventions always applied. Thus,
the military and those working with them had no legal discretion to decide on a
policy of torture. The court would not be questioning “sensitive judgments”; it
would be recognizing a clear crime. Unfortunately, this is not what the Al
Shimari court did.
to be something like wilful blindness on the part of the court to recognize the
mandate of the law. Infamously, John Yoo and colleagues at the justice
department wrote memos in 2002 that tried to fog the law, even redefine it. But
they never had the authority to override Congress; only Congress holds the
legislative power and Congress exercised that constitutional authority by
making torture unlawful and forbidding the military and everyone else from
engaging in it. Congress, not John Yoo, holds the legislative pen.
in Al Shimari will either enhance or damage America’s reputation as a country
that stands for constitutional order, the rule of law and human rights.
Congress acted in accord with America’s best traditions and values when it
criminalized torture. But for laws to have weight, the courts must enforce
abstaining from adjudicating the Al Shimari case – that is, by failing to say
what the law on torture is, and by failing to hold that the military or
contractors working for them are not above the law – the trial court failed to
perform its most fundamental duty.
Ghraib guards and contractors may have smirked at the laws on torture. Our
courts must not.