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The headlines keep coming. In Afghanistan, security contractors are accused of running a bordello and requiring security guards to engage in lewd acts to secure promotions. In a criminal prosecution stemming from events in Iraq, federal prosecutors charge that security contractors “repeatedly shot wildly into the streets of Baghdad without regard for civilians” long before the incident two years ago in Nisour Square that left fourteen Iraqi civilians dead. So how do federal judges react to private lawsuits brought by individuals who were innocent victims of the security guards?
On Friday, a panel of the federal Court of Appeals in Washington rendered its decision. Judge Laurence Silberman, perhaps the nation’s best known movement conservative judge, overruled a district court, announcing that the security contractors have immunity from suit. He wrote:
During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.
Consequently, the plaintiffs could not seek compensation for having been tortured and abused by the contractors. What’s the matter with Silberman’s ruling? Start with the core of his conclusion, that the contractors are “integrated into combatant activities over which the military retains command authority.” In fact, part of the problem with the contractors in Iraq is that they are not integrated into the authority of the Baghdad command. As I noted in Private Security Contractors at War, based on interviews with numerous figures in the Baghdad command, one of the major complaints raised by the career military is that they have no command authority over the security contractors. The report documents numerous cases in which contractors acted with conscious disregard for command authority’s orders, frequently with tragic results. For contractors to be subject to command authority, they would have to be subject to military discipline under the Uniform Code of Military Justice and through other measures. But the Department of the Army’s own probe of the facts which underlie the case in which Judge Silberman ruled showed just the opposite to be true.
Army investigators concluded that security contractors were responsible for the most serious abuses that occurred in the Abu Ghraib prison. They also accused the contractors of undermining military discipline and morale with their bad conduct and utter lack of accountability. They recommended a civilian criminal probe and prosecutions. The Bush Administration, seeking to minimize its embarrassment from the prisoner abuse scandal, swept the entire matter under the carpet.
Silberman’s opinion also reflects an amazing ignorance of or indifference to the basic concepts of the law of armed conflict. That law imposes a rule of absolute accountability on any persons fielded in a conflict, including contractors. It does not permit impunity or immunity. Not every aspect of the law of armed conflict is subject to private enforcement in the courts. But the prohibition on torture and cruel, inhuman, and degrading conduct is. The United States agreed in ratifying the Convention Against Torture that it would provide individuals who were tortured with legal recourse. The Alien Tort Statute, which formed the basis for the suit, has historically been used in federal courts to give foreigners compensation for claims of torture. But Judge Silberman decided to grant the contractors immunity from such suits.
Judge Merrick B. Garland, in dissent, responds to Silberman’s rationalization of his decision to immunize the contractors from torture claims:
The plaintiffs in these cases allege that 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.
At the current stage of the litigation, we must accept these
allegations as true. The plaintiffs do not contend that the United
States military authorized or instructed the contractors to engage
in such acts. No Executive Branch official has defended this
conduct or suggested that it was employed to further any
military purpose. To the contrary, both the current and previous
Administrations have repeatedly and vociferously condemned
the conduct at Abu Ghraib as contrary to the values and interests
of the United States. So, too, has the Congress.
No act of Congress and no judicial precedent bars the
plaintiffs from suing the private contractors — who were neither
soldiers nor civilian government employees. Indeed, the only
statute to which the defendants point expressly excludes private
contractors from the immunity it preserves for the government.
Neither President Obama nor President Bush nor any other
Executive Branch official has suggested that subjecting the
contractors to tort liability for the conduct at issue here would
interfere with the nation’s foreign policy or the Executive’s
ability to wage war. To the contrary, the Department of Defense
has repeatedly stated that employees of private contractors
accompanying the Armed Forces in the field are not within the
military’s chain of command, and that such contractors are
subject to civil liability.
Judge Garland is correct about all of this. The Silberman decision rests on no law and a critical misrepresentation of fact. So what motivated Silberman to render this decision, and Bush-appointee Brett Kavanaugh to sign on?
Silberman, who was once described to me by Ford Administration Deputy Attorney General Harold R. Tyler as the “least judicious and most political figure ever to sit on the federal bench,” has a long track record of political dirty tricks. The Guardian links him to an effort run by aides to Ronald Reagan to derail the Carter Administration’s hostage negotiations with Iran:
As a former Reagan advisor, Mr Silberman took part in a meeting between top Republicans and Iranian government representatives during the 1980 election campaign, when the Carter administration was trying to negotiate the release of American hostages in Tehran. Judge Silberman and two aides who took part in the meeting later claimed they had rejected the Iranian offer of a deal and did not even remember the name of the Iranian representative. But the meeting was never reported to the state department, at a time of high tension in the US-Iranian relations.
Shortly thereafter, Silberman was appointed to the Court of Appeals. His first major decision came in 1990, when he voided the convictions of Reagan advisors Oliver North and John Poindexter on a series of almost incomprehensible technicalities, thus blocking the work of Iran-Contra special prosecutor Lawrence Walsh. Judge Silberman never bothered to disclose to the litigants or his colleagues on the bench the fact that many people involved in the case were his friends and associates from his own prior dabbling with the Iranians. A few years later, he joined with another movement conservative judge, David Sentelle, in removing Robert Fiske as Whitewater special prosecutor and appointing his friend Kenneth Starr in his place. In Blinded By the Right, David Brock, who describes Silberman as a “mentor,” details a long list of political schemes that Silberman embroiled himself in as part of an effort to undermine the administration of President Bill Clinton–all while he was sitting as a judge.
Silberman’s decision in this case may be legally baffling, but it is easily understood from a political perspective. Over the last eight years, the privatization of the nation’s security operations through massive, frequently no-bid contracts with corporate security providers has belonged to the bedrock of G.O.P. politics. The corporations involved have generally also been a revolving door for Republican policy figures, offering them corporate shelter when they are out of office. A totally symbiotic relationship has emerged. A policy of impunity has been one vital aspect of this murky relationship. The Bush Administration struggled around the world to secure immunity for its security contractors—General Order No. 17, issued by Paul Bremer on his last day as American proconsul in Iraq, is a clear example. It exempted security contractors in Iraq from accountability under Iraqi law. Bush Administration negotiators pushed for similar concessions from the government of Afghanistan. As documented in some detail in Private Security Contractors at War, in the United States, Bush Administration officials systematically swept cases involving contractor abuse under the carpet, taking no action. This left only private rights of action, as in the case of the suits of the Abu Ghraib torture victims, as a channel of accountability. Silberman is extremely eager to slam the door on that, and this is just what his opinion proposes. Republican legal architects talk about a culture of accountability, but what they are introducing is actually a culture in which corporate surrogates torture, rape, and abuse with no consequences whatsoever.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Damages sought, in a defamation suit, by a Chicago landlord from a tenant who complained about mold via Twitter:
The British House of Lords voted to limit the right of parents to spank their children.
The Mall of America hired its first black Santa, a real estate company valued Mr. and Mrs. Claus’s North Pole home at $656,957, and it was reported that the price of the gifts from “Twelve Days of Christmas” went up by more than $200 in 2016, to $34,363.49.
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."