Wilkinson said the government was letting the contractors "hang out to dry" by "watching from the stands" and arguing the case should go forward even though it had chosen not to prosecute contractors for any wrong doing.
"Why wouldn't you be the logical party to hold contractors accountable for tortuous acts of which we would all disapprove?" he asked.
The government's position also highlights potential complications should this case go forward. While the government stressed that discovery should be limited in order to protect federal interests, Koegel indicated he would object to limitations on his clients' ability to prove they were not involved in the alleged torture.
"Would you agree to discovery limitations as to people in the military?" asked Judge Dennis W. Shedd
Koegel responded, "No."
"You would push it as broadly as you possibly could to prove your client did not conspire with anybody?" Shedd pressed.
"Absolutely your honor. The prime evidence of absence of conspiracy is going to be found in the testimony and the documents of the alleged co-conspirators," Koegel said.
Human Rights First was pleased with the government's position.
"The government is basically saying that the contractors should be held accountable for torture. Despite the fact that the contractors were implicated in a Senate Armed Services detainee treatment report, none of those contractors have been held accountable," said Melina Milazzo, a lawyer for the organization.
In 2004, a similar case was brought by former prisoners against CACI and L-3 (formerly Titan Corp.). But a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed the case, arguing that the suit interfered with the president's ability to control military operations on the battlefield.
The prisoners appealed their case to the Supreme Court, and the court called for the federal government to express its view. At that time, the government argued it was premature for the court to take up the case that involved inordinately complex legal issues such as immunity, federal pre-emption and the role of courts in addressing combatant activities. The government said the issues would benefit from "further percolation" in the lower courts. The Supreme Court, without comment, declined to take up that case.