No Comment — September 14, 2009, 10:42 am

Security Contractors Immune from Torture Charges, Judges Rule

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2017

Star Search

= Subscribers only.
Sign in here.
Subscribe here.

Pushing the Limit

= Subscribers only.
Sign in here.
Subscribe here.

Bumpy Ride

Bad Dog

= Subscribers only.
Sign in here.
Subscribe here.

Preaching to The Choir

= Subscribers only.
Sign in here.
Subscribe here.

Monumental Error

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Article
Star Search·

= Subscribers only.
Sign in here.
Subscribe here.

On December 3, 2016, less than a month after Donald Trump was elected president, Amanda Litman sat alone on the porch of a bungalow in Costa Rica, thinking about the future of the Democratic Party. As Hillary Clinton’s director of email marketing, Litman raised $180 million and recruited 500,000 volunteers over the course of the campaign. She had arrived at the Javits Center on Election Night, arms full of cheap beer for the campaign staff, minutes before the pundits on TV announced that Clinton had lost Wisconsin. Later that night, on her cab ride home to Brooklyn, Litman asked the driver to pull over so she could throw up.

Illustration by Taylor Callery
Article
Pushing the Limit·

= Subscribers only.
Sign in here.
Subscribe here.

In the early Eighties, Andy King, the coach of the Seawolves, a swim club in Danville, California, instructed Debra Denithorne, aged twelve, to do doubles — to practice in the morning and the afternoon. King told Denithorne’s parents that he saw in her the potential to receive a college scholarship, and even to compete in the Olympics. Tall swimmers have an advantage in the water, and by the time Denithorne turned thirteen, she was five foot eight. She dropped soccer and a religious group to spend more time at the pool.

Illustration by Shonagh Rae
Article
Bumpy Ride·

= Subscribers only.
Sign in here.
Subscribe here.

One sunny winter afternoon in western Michigan, I took a ride with Leon Slater, a slight sixty-four-year-old man with a neatly trimmed white beard and intense eyes behind his spectacles. He wore a faded blue baseball cap, so formed to his head that it seemed he slept with it on. Brickyard Road, the street in front of Slater’s home, was a mess of soupy dirt and water-filled craters. The muffler of his mud-splattered maroon pickup was loose, and exhaust fumes choked the cab. He gripped the wheel with hands leathery not from age but from decades moving earth with big machines for a living. What followed was a tooth-jarring tour of Muskegon County’s rural roads, which looked as though they’d been carpet-bombed.

Photograph by David Emitt Adams
Article
Bad Dog·

= Subscribers only.
Sign in here.
Subscribe here.

Abby was a breech birth but in the thirty-one years since then most everything has been pretty smooth. Sweet kid, not a lot of trouble. None of them were. Jack and Stevie set a good example, and she followed. Top grades, all the way through. Got on well with others but took her share of meanness here and there, so she stayed thoughtful and kind. There were a few curfew or partying things and some boys before she was ready, and there was one time on a school trip to Chicago that she and some other kids got caught smoking crack cocaine, but that was so weird it almost proved the rule. No big hiccups, master’s in ecology, good state job that lets her do half time but keep benefits while Rose is little.

Illustration by Katherine Streeter

Estimated portion of French citizens with radical-Islamist beliefs who grew up in Muslim families:

1/5

Human hands are more primitive than chimp hands.

Trump declared flashlights obsolete as he handed them out to Puerto Ricans, 90 percent of whom had no electricity in their homes; and tweeted that he wouldn’t keep providing federal hurricane relief “forever” to Puerto Rico, a US territory that the secretary of energy referred to as a “country.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today