Twelve years after horrific photos surfaced of U.S. soldiers torturing Iraqi civilians at Abu Ghraib prison, torture remains headline news. Disturbingly, the focus of this public conversation has centered not on the glaring lack of accountability for those involved in past torture, but rather, on the question of whether torture is a viable U.S. policy option for the future. This is a powerful reminder of why Al Shimari v. CACI, CCR’s case on behalf of four Iraqi civilians against private military contractor CACI Premier Technology, Inc. for its role in torture and other serious abuses at Abu Ghraib, remains urgent. Tomorrow morning in Richmond, Virginia, eight years after the case was filed, the Fourth Circuit Court of Appeals will hear oral arguments in the latest appeal in the case.
Before being released from Abu Ghraib prison without charge, our clients survived violent treatment including sexual abuse, electric shocks, and broken bones. While CACI employees were directly implicated in these acts by U.S. military investigators, CACI has evaded responsibility for nearly a decade. As reliance on private military contractors expands, this case represents both a vital effort to obtain accountability for the horrific acts inflicted on our clients and a potent reminder of the duty of courts to review the claims of torture survivors.
Unfortunately, the district court in Al Shimari has bypassed that obligation. In June 2015, it ruled that the abuses committed against our clients were unreviewable by the courts because torture is a “political question.” The political question doctrine holds that courts are only able to decide legal questions, while purely political questions are the responsibility of the Executive Branch and Congress, and beyond the jurisdiction of the judiciary. Based on his conclusion that CACI’s actions were essentially direct military action and that our clients’ claims of torture, war crimes, and cruel and inhuman treatment would implicate “sensitive military judgments,” the district court judge held that the suit against CACI was an impermissible lawsuit against the military—in spite of the fact that the abuses in question violated both U.S. and international law. The implications of such a finding are deeply troubling: that private corporations can torture with impunity.
CCR appealed that decision, emphasizing that CACI interrogators were not under the complete control of the military, and that adjudicating this case will not touch on sensitive military decision-making. Tomorrow CCR will argue that because torture is unambiguously unlawful under domestic, military, and international law, it can never be a legitimate policy choice for the military or private contractors. The potential consequences of permitting a private military contractor to escape civil liability for the commission of torture and other brutal abuses bear serious ramifications not only for our clients, but also for the future of the American legal system. As Alberto Mora, formal General Counsel of the Navy, emphasized in an amicus brief and related op-ed, to permit the political question doctrine to reach beyond its limits in shielding this case from review “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.” Tomorrow’s oral argument before the Fourth Circuit represents a critical step both toward the protection of these fundamental human rights and the justice that has eluded our clients for far too long.