Federal Court to Decide Whether Former Abu Ghraib Prisoners Can Sue U.S. Contractors for Damages

Feb. 3, 2012 -- Eight years after the release of shocking photographs depicting detainee abuse in Iraq's famed Abu Ghraib prison, a federal appeals court in Virginia is grappling with whether former Iraqi prisoners can bring a civil suit against U.S.-based contractors.

The case, which hasn't drawn much public attention, is notable for an unexpected position taken by the U.S. government.

Although the government is not a party to the suit, when the court asked for its opinion, it argued the former prisoners' case should be allowed to go forward.

It marks the first time the government has said that former Abu Ghraib prisoners, who allege they were tortured while in U.S. custody, should have the opportunity to make their case and sue contractors for damages.

But the government says that similar claims in the future would be pre-empted by a federal law passed after the Abu Ghraib scandal that provides separate ways of holding contractors accountable.

"The U.S., at least at this juncture, has given a green light to the case proceeding," says Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, a group representing the Iraqi civilians.

"In so doing, the United States rightfully recognized that there is a federal interest in ensuring military detentions are conducted in a lawful manner, consistent with their international law obligations and ensuring that contractors are held accountable for their egregious conduct."

The government's position appeared to be an attempt to straddle an interest in protecting the federal government from civil law suits second guessing the military, but also addressing concerns that contractors who were implicated in the Abu Ghraib scandal were never charged with any crime.

After the 2003 invasion of Iraq, the United States used the Abu Ghraib prison as a detention facility and hired contractors from U.S.-based CACI International and L-3 Services Inc. to provide interrogation and interpretation services to the U.S. military. In 2004, photos emerged depicting abuse of several detainees.

Amid an international outcry, the military disciplined several service members. But no contractor was ever charged with abuse.

In the pending case, former Iraqi prisoners allege that contractors exposed them to electric shocks, sexual assaults, naked strip searches, sensory deprivation, mock executions as well as "other dehumanizing acts of torture." Lawyers for the Iraqis say that the contractors participated directly and through a "conspiracy in torture."

Lawyers for CACI say the former prisoners are relying on allegations that don't implicate CACI directly and say that their clients were performing military interrogations in a theater of war under contract with the U.S. government.

J. William Koegel Jr., a lawyer for CACI, argues in court papers that his clients should receive absolute immunity for their performance of governmental functions, and that the former prisoners' claims are a product of Iraqi law that applies only to internal relations between its citizens, not to occupying personnel.

While a district Court ruled in 2009 that the case could go forward to discovery, a majority three judge panel of the 4th Circuit Court of Appeals reversed that decision. The full 14-judge panel of the 4th Circuit agreed to take up the case and heard arguments last week.