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There are a lot of reasons to be frothing at the mouth angry at the criminal Bush administration. One of the biggest is the way that they not only managed to overturn a half century of certainty about what torture is and the use of it, in doing so they have also extended the immunity of those committing torture in the name of national security. The use of the State Secrets privilege to quash cases brought by torture victims was the standard operating procedure in the Bush administration.

It has sadly continued in the Obama administration. Without letting our current Executive Branch off the hook at all, it is easy to understand how that happens. How many of us have ever been willing to give up privileges we have, even if we are fairly sure it is not a good idea for anyone to have them? Since no one, not even the former V.P. Dick Cheney is the villain in the movie of their life, everyone thinks they will use these powers only for good.

This is why we need groups like the ACLU and the Center for Constitutional Rights to fight against the expansion of governmental power and accountability for any illegal acts the government might commit.

The CCR is filing for certiorari  with the Supreme Court in the case of Saleh et al v. Titan et al. This case is a civil suit brought by 250 Iraqis and their widows against two U.S. contractors. The case revolves around the infamous Abu Ghraib prison in the early days of the occupation. The Iraqis are brought suit claiming that they were tortured by employees of Titan Corporation (which is now called L-3 Services, ever notice the worst offenders keep changing their names?) and a company called CACI International.

These two companies were hired by the U.S. Military to provide interpretation and interrogation services. The Iraqis claim all manner of abuse at the hands of the defendants including rape, beatings which resulted in the death of the detainees and having to watch family members suspended from a ceiling and beaten. The man who was hung from the ceiling and beaten died from this treatment.

What is interesting about this case is that they plaintiffs are being very clear in claiming that all this was done outside the direction of the Military and against its express orders and the statements of members of the criminal Bush administration. The reason for this is that while contractors have some shielding from civil suits when acting on their contracts with the government, that exemption does not extend to acts that are outside of the contract.

Or at least it did until the DC Court of Appeals ruled that all claims against the two companies should be granted summary judgment and dismissed. By a 2-to-1 vote the three judge panel found the companies where exempt for civil suits on the basis of exemption based on their being in "battlefield conditions".

The dissenting judge, Judge Garland, wrote a 36 page dissent excoriating his colleges for their decision. The problem rests on the fact that the two judges; Judges Silberman and Kavanaugh (Kavanaugh was a protégée of Ken Starr and worked in George W. Bush administration before being appointed to the DC bench) based their decision on a case called Boyle v United Technologies Corp.

This case defined when the direct requirements of a government contract would allow the company to be exempt form civil suits for failing to meet State legal requirements. The two Judges found that under Boyle the contractors would be exempt form civil suits. The issue is that Judge Garland finds they are extending the exemption privilege in ways that Congress never wrote or intended, merely because the contractors where in a war zone. Judge Garland writes::

Boyle has never been applied to protect a contractor from liability resulting from the contractor’s violation of federal law and policy. And there is no dispute that the conduct alleged, if true, violated both.7 Hence, these cases are not "within the area where the policy of the ‘discretionary function’ would be frustrated," and they present no "significant conflict" with federal interests. Boyle, 487 U.S. at 512. Preemption is therefore not justified under Boyle.

This is the meat of the issue. You see the Iraqi’s case has never been allowed to be presented nor has there ever been full discovery. They are merely trying to win the right to bring the case in Federal Court and let the wheels of justice turn as they may. The contractors, who if the allegations are true have committed heinous felonies, are trying to say that their actions can not be challenged in court just because they worked for the Federal government.

If the Supreme Court hears this case they will be deciding the level of shielding those contracting with the Military will have from acts that might be illegal. This is very important as we are currently using hundreds of thousands of contractors in our occupation of Iraq and our war in Afghanistan.

We have seen the problems that these quasi-military, quasi-private companies can cause with the callus acts of Blackwater and their ability to play the cracks in the legal system to avoid accountability. No matter how you feel about the use of contractors (I hate it, think that it is completely wrong) there is a need to have control of their actions and accountability when they break our laws.

By carving out a new test for exemption which relies merely on the proximity of the contractors to the battlefield, we risk a situation where there can be no control or accountability for that actions of any group contracting with the military, regardless of the nature of the act. It should be pointed out that the actions L-3 and CACI are being sued over resulted in the court martial and conviction of several U.S. soldiers, including Lindsey England.

There can be no justice if victims of contractor’s actions can not sue for the very same acts which we prosecuted and convicted U.S. soldiers for. Justice rarely survives a double standard and this one hell of a double standard. The contractor’s are claiming that they have immunity because of the contract, even though the military says it never ordered these actions (which is probably not true, but that is the story they are clinging to) and prosecuted their own people over them.

It is hoped that the strong and persuasive dissent will entice the Supreme Court to hear the case. The outcome is never assured, but if they hear it then there is a chance people who were tortured and their widows will have the chance to make a claim against the companies who actually committed the crime.

Even if they win, it is unlikely that this will have pushed the bounds of Executive branch power back. Still every inroad we can make in trying to bring accountability to the actions of the government or its contractors is important in keeping the next overreach from happening and being normalized by use.

The floor is yours.

Originally posted to Something the Dog Said on Fri Apr 30, 2010 at 05:26 AM PDT.

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Comment Preferences

  •  Tips? Flames> (19+ / 0-)

    Hope that civil suit discovery will push the DOJ to do the right thing?

    Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

    by Something the Dog Said on Fri Apr 30, 2010 at 05:26:07 AM PDT

  •   Not much hope at all. OPR report seems to have (7+ / 0-)

    stamped this out and is being treated as the wax seal by the admin.


    DOJ doesn't talk about it
    Cabinet doesn't
    Spokespeople don't
    The Prez doesn't

    Looking ahead never seemed so nauseating.

    •  I know. Still things do change even when (2+ / 0-)
      Recommended by:
      Liberal Thinking, Xapulin

      we don't expect them to. There is a small (and not very likely) window at the start of the 112th Congress where there might be real investigations. A lot of things could break before then.

      Unfortunately, being someone that deals with reality, even when chasing an ideal, I have come to believe it is going to take a decade or more before we are ready to address this. In that we are not very different from any country that engages in torture.

      Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

      by Something the Dog Said on Fri Apr 30, 2010 at 05:42:36 AM PDT

      [ Parent ]

      •  I wonder if Obama's biggest fear is that any (2+ / 0-)

        prosecution will only result in lower level people falling on their swords and appealing all the way to SCOTUS, where the STARK crew will effectively enshrine torture as constitutional and legitimate. Then, the worst of both worlds:

        1. no one would be brought to justice
        1. torture becomes legitimized

        Don't know whether this speculation makes sense, but I still don't support silence or inaction, by either politicians, our nation, or the people on this site.

        •  That might be possible. (2+ / 0-)
          Recommended by:
          Liberal Thinking, Xapulin

          Though you would think that he could talk about that fear.

          But lets look at that. If they did indeed go all the way to a SC appeal and win, legalizing torture, that just puts the burden on Congress to pass laws that close that loophole. There can be no blanket protection for lawlessness so airtight statutes could be written.

          It would mean those who committed these acts got off, but it would prevent the more worrisome issue of future torture.

          I think that would be about a quarter of a loaf, but one of the main reasons I pursue accountability is to prevent us from doing it again, only worse.

          Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

          by Something the Dog Said on Fri Apr 30, 2010 at 06:04:30 AM PDT

          [ Parent ]

          •  But in that scenario, if SCOTUS makes (1+ / 0-)
            Recommended by:
            Something the Dog Said

            torture constitutional, then it would take an amendment. I highly doubt that we would get two-thirds in either House or Senate, and it would take both. The alternative route would be a constitutional convention brought about by two thirds of state legislatures. I don't see either possibility.

            The worst of these people revel in their blood lust. Those people in the great middle really don't give too much of a damn who dies or who is hurt in their name or under their flag, so long as they don't have to see it and their families are reasonably well off.

            The biggest problem that the American public had with Abu Ghraib wasn't the initial shock, but the fact that they had to see it, and were forced to confront what we were doing to human beings. It was a relief for most of them to not have to see those images any more, to not have to think of them, and therefore to not wrestle with their own responsibility. Silence might be consent, but people would rather be complicit than uneasy.

            •  I don't think so. They would rule on the law as (2+ / 0-)
              Recommended by:
              Liberal Thinking, Xapulin

              it is. The Court is unlikely to rule on something as far reaching as the Unitary Executive doctrine. If for no other reason than it would limit their own authority.

              And they would not need to. They could rely on the OLC memos and say it was good faith efforts. That gets them out of having to say that "When the president does it is it is legal".

              Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

              by Something the Dog Said on Fri Apr 30, 2010 at 06:18:19 AM PDT

              [ Parent ]

              •  You're probably right. My frustration is that (1+ / 0-)
                Recommended by:
                Something the Dog Said

                none of this should be theoretical.

                Leahy's hearing in February (just after the OPR came out) was the last that I've heard anyone in government say anything on this subject.

                The last that I heard, Deputy AG Gary Grindler was trying to figure out why Yoo's e-mails were missing, but he went out of his way to say that it didn't look like foul play. The National Archives was also pressing DOJ to investigate whether e-mails and other records in the OLC were destroyed without authorization.

                I don't know that either of these actions are getting any traction or are even still active.

                •  The Grindler investigation is (1+ / 0-)
                  Recommended by:

                  still churning away. It is not going to produce anything earlier than next January. Remember how long the Plame leak investigation took.

                  There is a an Intel committee report that should be out anytime. It is probably being held up for political reasons. It is the companion piece to the Armed Services report.

                  But I feel your frustration too. It is crazy that we can't investigate known crimes.

                  Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

                  by Something the Dog Said on Fri Apr 30, 2010 at 06:39:27 AM PDT

                  [ Parent ]

              •  Good point. (2+ / 0-)

                Some days I get depressed just by thinking about  SCOTUS. They don't even have to rule on anything.

                But a unitary executive screws over the court system same as Congress. And the justices are in a particularly advantaged position to protect their powers from encroachment.

                Thanks. I needed that.

                _Karl Rove is an outside agitator._

                by susanala on Fri Apr 30, 2010 at 07:09:25 AM PDT

                [ Parent ]

            •  Not the SCOTUS (0+ / 0-)

              The SCOTUS can't make anything constitutional. If it's not constitutional, a SCOTUS decision doesn't make it constitutional. It's just their opinion. Consider the Dred Scott case. Did the SCOTUS ruling make slavery constitutional in the U.S.?

              I would agree that it would give certain parties more leeway to violate the Constitution, but the Constitution is what it is. Originally, the thinking was that everyone had a voice in what was constitutional. The President was supposed to veto legislation that Congress passed if he thought it was unconstitutional. The Congress was supposed to rein in the President. Juries were expected to not convict if they thought a purported law was unconstitutional. The courts were not expected to have much say in the matter because they didn't have a way to implement their judgments.

              I would like it better if everyone concerned had a little more spine when it came to the Constitution, and would simply not grant the government unchallenged action on things that are, really, clearly unconstitutional.

              Of course, that would take a public that took civic duty much more seriously than ours appears to. You are entirely right that the bulk of the American people want gas in their tank even if it means a few Iraqis get tortured to get it. They'll look the other way and make a moral excuse.

              It's precisely this that makes these cases important. We need to keep confronting the public on their complicity in this. Each case brings it back to the public, no matter how briefly. Are they really so callous that they are willing to see people tortured to death so they can drive with their windows up? Let them see the pictures of Abu Ghraib again (and again) until they get a really clear picture of what kind of world they are creating.

          •  If SCOTUS disregards Geneva Conventions and (0+ / 0-)

            decides murdering civilians while torturing them is legal, then U.S. law becomes an empty illusion.

            Murder becomes legal as long as the murderer claims he suspected the victim of being a terrorist, or if the murder is done somewhere near a battlefield. This means McVeigh, who wiped out a day care in Oklahoma, should be let out of jail, because he had patriotic feelings when he killed those kids.

    •  If it is to be settled in court, (0+ / 0-)

      no prejudice needs to be shown.  The judiciary needs to be neutral.  

      There is a difference between prudent silence and keeping secrets.

      by hannah on Fri Apr 30, 2010 at 05:58:19 AM PDT

      [ Parent ]

  •  In order for an issue to be argued, (3+ / 0-)

    there has to be a case and there have to be two sides.  And, in a civil suit, the defendant has to respond, otherwise the plaintiff automatically wins.  Which, in a case such as this is undesirable, since it means the behavior being complained of never gets aired.

    To take an example from another arena, the suits "won" by ACORN against various financial institutions were eventually ineffectual because the institutions preferred to settle and pay out money, rather than open their books.  

    Here, the only way to get the atrocities into the public record is to appeal and try the case.

    It is probably worth noting that we have foreign detainees to thank for some important clarifications of how human rights are protected and who's behavior is prescribed and proscribed by the Constitution.  The Constitution is addressed by the people to the agents of government.  They're OUR AGENTS and are supposed to behave as directed and, if there are no directions, they are not supposed to act.  In other words, if there were no directives to use physical aggression against detainees, then they weren't supposed to use it.

    BUT--private corporations having been considered equal to private persons, do not labor under such limitations and restrictions.  They can do, or have claimed the ability to do, whatever is not in the criminal code.  So, a simple assault that leaves no marks can be considered insignificant.  It was precisely because private corporations were/are perceived to have greater liberties, more leeway, less restriction, that they were recruited to provide quasi-governmental functions.  It would be the best of both worlds--the power of the state and the irresponsibility of a private corporation, a marriage made in hell.

    by hannah on Fri Apr 30, 2010 at 05:54:49 AM PDT

    •  That's Why We Need to Get Rid of Outsourcing (0+ / 0-)

      The way to do that is to require that all contractors providing governmental services work to the same standards as if they were a part of government, including responding to sunshine laws exactly the same, signing up for the same level of legal accountability, providing the same level of retirement and healthcare, and so on. Under these conditions, I doubt there'd be any profit in it, and it just wouldn't happen.

      Outsourcing always costs the taxpayers more than having a service performed by government employees. Not only do contractors have all the costs of providing the service, they also have the overhead of profits. We have to make this equation visible to the public so that we can end these boondoggles.

      •  Actually, "if you want something done (1+ / 0-)
        Recommended by:
        Liberal Thinking

        right, do it yourself" applies.  Government is the ultimate DIY enterprise.  But, that's not where the profit lies.  Which is why there's an urge to privatize.

        Government is set up to provide the goods and services the recipients don't want, but  need and success is measured by a reduction in need.  For example, when preventive medicine works well, people need less care.  Ditto for fire prevention or the perpetuation of ignorance.  

        Decreasing need = reduced profit.  That is, government services are inherently not profitable.  Trying to make them so corrupts the mission of government.  Still, the profit-orientated market is attracted by another aspect--the potential for monopoly.  Monopoly is always a desideratum for the profit-oriented because monopoly permits a reduction in quality and unwarranted price increases.

        So, free enterprise has many incentives to tap into providing government services and we the people need to resist the faux promise of lower cost.  Profit oriented enterprise always promises lower costs.  What it doesn't mention is where the costs are lowered--in the production and quality standards.

        by hannah on Sat May 01, 2010 at 01:08:21 AM PDT

        [ Parent ]

  •  IF the SCOTUS (3+ / 0-)

    grants certiorari, will they actually change the ruling?

    The DC Circuit's ruling is a travesty of justice.  US mercenaries are immune from civil suits because of battlefield conditions, when the US and the mercenaries created these conditions?  Sick.

  •  Non-lawyer question... (1+ / 0-)
    Recommended by:
    Something the Dog Said

    if the SCTOUS grants them the cert., then who does the arguing?

    Where are the "better" Democrats?

    by lalo456987 on Fri Apr 30, 2010 at 06:11:37 AM PDT

  •  So very depressing that our courts fail to see (2+ / 0-)

    the obvious. Killing people while torturing them, during interrogation, breaks U.S. law and the international law of the Geneva Conventions.

    It is also immoral.

    Torturing people in order to get them to tell us where to find weapons of mass destruction that do not exist is also stupid.

    How do I apply to join a different species.

  •  Can someone explain? (0+ / 0-)

    So let me just make sure I am understanding this. You all believe that company, which is running a prison paid for by the federal government, and believe me they have the clause, should be held responsible for actions they took during war time. When we are trying to keep your country safe, oh and you want to prosecute the former administration for doing it? J

    •  Who decides if the torturer is acting to keep us (3+ / 0-)

      safe or because he is a sadist who enjoys hurting people.

      I think the civilians of the United States are much less safe because U.S. Citizens tortured a bunch of Iraqis for stupid reasons and then sent them home to cry to their large tribal families.

      Letting Americans wander around torturing people in other countries, for confused reasons and unregulated reasons, will make us a whole lot of enemies.

    •  Any action that was taken is justified (2+ / 0-)

      ...if "we are trying to keep [our] country safe".


    •  Yes (1+ / 0-)
      Recommended by:
      Something the Dog Said

      We want them to be held to international laws about crimes against humanity, just like the U.S. and its allies have held persons of other countries accountable (and executed them) for torturing people.

      Let's be real clear about this. The people who conducted well-documented torture and other war crimes are criminals, people that broke the law, and if found guilty should be punished for those crimes.

      This helps protect the country by sending a strong message to about 7 billion people that the U.S. is a country of laws, and that it has a strong legal system that does the right thing even when it's hard politically. That shows that the U.S. is doing the right thing and gains us untold allies across the globe in fighting extremism. It is the single best thing that we can do to make us safe.

      And, BTW, torturing people provides no valuable information and can't be construed, even under the best interpretation, as helping to keep the country safe.

      If you have any doubts about why these people should be on trial, I would invite you to look at the Prosecuting Officials for Crimes page, which goes into detail about why the Bush Administration officials and the people they employed to commit war crimes should be on trial.

  •  Added to Dkosopedia (2+ / 0-)
    Recommended by:
    Something the Dog Said, DWG

    This post has been added to the Prosecuting Officials for Crimes page of Dkosopedia.

    Let's keep the pressure on these people to eventually bring the U.S. up to American standards of justice.

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