Fourth Circuit Green Lights Abu Ghraib Lawsuit

Fourth Circuit Green Lights Abu Ghraib Lawsuit

A jury may decide if CACI Premier Technology is legally responsible for prisoner abuses which occurred over a decade ago in Iraq, according to the U.S. Court of Appeals for the Fourth Circuit.

The contractor in charge of the controversial prison had invoked the sovereign immunity defense. This doctrine shields governmental units from liability lawsuits, unless Congress or the appropriate authority has expressly waived sovereign immunity. Judge Henry Floyd wrote for a unanimous three-judge panel. He held that CACI may have a sovereign immunity argument, but it was not clear enough to support a case for summary judgement. Instead, the case should go to a jury, he ruled.

In a concurring opinion, Judge Marvin Quattlebaum agreed with the holding but warned that the “narrow interpretation of the collateral order doctrine in this case has taken us down a dangerous road.” He cautioned against a court second-guessing decisions made during the fog of war, even if a private contractor acting under DoD auspices makes those decisions. “These may seem like minor inconveniences given the conduct at issue has been uniformly condemned and because the defendant here is a private contractor. But while we have no jurisdiction to address them now, the implications from these proceedings are potentially quite significant,” Quattlebaum added.

Baher Azmy, the attorney representing the former prisoners, welcomed the move. “We hope this decision clears the last of the innumerable obstacles that had stood in the way of what our clients have wanted for over 10 years — to tell their story in an American court of law,” he said.

Abu Ghraib

The War on Terror is in a legal grey area. Most captives are not Prisoners of War because they do not fight on behalf of a country. On the other hand, they are not street muggers, either. They are too dangerous to be handled that way.

Much of that uncertainty has been resolved. But in the early 2000s, shortly after the U.S. launched punitive actions against Iraq and Afghanistan, it was very grey indeed.

Abu Ghraib is about 25 miles west of Baghdad. During strongman Saddam Hussein’s reign, as many as 50,000 prisoners were housed in what was essentially a concentration camp. After Hussein’s outster, the U.S. military converted Abu Ghraib to a military prison.

In June 2003, shortly after the U.S. invasion, reports surfaced of a prison riot. According to one report, troops from an “occupying power” killed one prisoner and wounded seven others. In July 2003, Amnesty International released a report condemning the conditions at Abu Ghraib. The Associated Press did the same thing in November 2003. No one paid much attention until CBS News obtained photographs and aired them in April 2004. About the same time, the New Yorker published a highly critical article.

Later that year, the ACLU obtained a copy of an Executive Order which authorized torture at Abu Ghraib and several other locations.

11 soldiers were prosecuted, mostly for dereliction of duty. The fallout continued for several years, but high-level figures, such as Defense Secretary Donald Rumsfeld and Attorney General Alberto Gonzales, largely survived the fray. Engility Holdings, which later became a division of CACI International, paid $5.3 million to settle a lawsuit from 71 former inmates.

Overseas Contractor Activities

Abu Ghraib was definitely one of the most notorious private military contractor operations in the early days of the Iraq War, but it was by no means the only one. Contractors typically operate prisons and other “rear area” military infrastructure. Their activity frees up regular servicemembers for offensive operations and therefore keeps the official troop count artificially low. Contractors also maintain equipment, serve in intelligence capacities, cook food, and perform numerous other chores that the army could not do without.

On top of this, contractors protect convoys, manage checkpoints, escort VIPs, and engage in other such activities.

Reducing the U.S. military’s footprint may be one of the most important contractor roles. Contractor casualty figures do not appear in official reports. Moreover, DoD officials repeatedly refuse to list specific numbers about contractor troop levels, on the grounds that such information is either a trade secret or would tip off the enemy. So, the troop footprint looks lower to politicians back home.

Contractors also go over well with the natives, at least for the most part. Local politicians can stay that there are fewer U.S. troops in country than there actually are, so they score points with their constituents.

Flexibility is important, as well. Contractors are paid more than regular servicemembers. But once the deployment ends, the contract ends, as well. The U.S. government has no further financial obligation. Additionally, contractors receive no benefits, such as VA medical care. As outlined below, the Defense Base Act takes care of medical care. Finally, the DoD can deploy contractors quickly. When a need arises, the commander picks up the phone, and qualified soldiers may be in country within a few days. There is no need to train them.

Injury Compensation Available

Most injured overseas contractors suffer trauma injuries, like combat wounds. The DBA provides benefits in these cases. Other contractors fall victim to an occupational disease, such as breathing problems related to burn pit exposure. The DBA provides benefits in these cases, as well.

In terms of eligibility, the illness or injury must have occurred in an overseas war zone. In this context, a “war zone” is any country that has at least one U.S. military establishment of any size.

The illness or injury need not have occurred directly in the line of duty. The United States Supreme Court has made it clear that victims need only establish a nexus between the injury and the deployment. So, if a contractor is shopping at a market when a car bomb explodes, the contractor is eligible for benefits, even though s/he was not technically “on the clock” at the time.

Defense Base Act benefits usually include lost wages and medical expenses. Typically, the DBA pays two-thirds of the victim’s average weekly wage for the duration of any temporary disability. DBA insurance companies typically pay all reasonable medical expenses directly. Most injured victims never see a medical bill, and they are not responsible for any unpaid charges.

Contact Barnett, Lerner, Karsen, Frankel & Castro, P.A. for more information about the DBA process.