The Pain Cannot Go On: RICO and Abu Ghraib

On June 9, 2004, a civil rights group, the Center for Constitutional Rights (CCR) filed a class-action lawsuit in the Southern District of California. The lawsuit was filed on behalf of about a thousand Iraqis who had been imprisoned in Abu Ghraib. The lawsuit alleges violations of the Alien Tort Claims Act, assault and battery, sexual assault and battery, wrongful death, violations of the Fourth, Eigth, and Fourteenth Amendments to the United States Constitution, among other things. And, most significantly, it alleges that a consortium of U.S companies and their employees violated the Racketeer Influenced and Corrupt Organizations Act (RICO) through their work in the Abu Ghraib prison. Over the next few days, ObWi will explore the extent and nature of the Abu Ghraib RICO allegations.

I’d say that the Abu Ghraib claims are shocking, if the term “shocking” wasn’t already so diluted by its association with Britney’s marriages, thirty-year-old National Guard pay stubs, and JacketGate, etc. A sixteen year-old boy “was [allegedly] prevented from eating, drinking water, sitting, or sleeping. He described being sexually abused by Americans who placed their fingers in his anus.” One man was purportedly told by American interrogators that if he didn’t talk, they’d “torture him and rape his sister.” Other men were purportedly tortured, threatened with death, or sexually humiliated. And, allegedly, some were murdered in cold blood by their American interrogators and guards.

These allegations are enough to fill anyone with rage. But don’t let your rage be blind. As we get into the details of the case, you may begin to raise real questions regarding the truth of some of these allegations. You may also see that blame for the nightmare of Abu Ghraib may not fall to the persons accused. And you will see, I hope, that there’s a reason why we have judges and juries in this country, and that things are usually not so black-and-white that you can pick up a newspaper, read a story, dispense justice, and get on with your day.

The only thing worse than a crime, after all, is to convict the wrong person for it.

(There’s more.)

Today, we examine the basics of RICO in order to put the claim advanced by the Abu Ghraib plaintiffs into perspective. Tomorrow, we’ll discuss the initial arguments by the plaintiffs and defendants in the case. On Thursday, we’ll discuss the case’s progress — the gruesome allegations, the greedy plaintiffs’ attorney, the grand theories by which defense counsel hope to make the whole thing go away, among other things (including things that don’t begin with “g”). Additional updates will come with new developments.

Before we begin, however, the disclaimer: At certain points in this discussion, I will link to resources that generally explain the legal issues discussed. My decision to link to a specific source is not an endorsement of the accuracy or trustworthiness of the source. Nor does this article provide legal advice. If you have a specific question, consult your own lawyer: after all, she needs the money. 😉

To understand the Abu Ghraib case you must understand RICO, which is the big ticket item in the Abu Ghraib complaint. RICO passed in the 1970s, intended as another weapon against the mob. RICO allows a victim of organized crime to sue the perpetrators and recover up to treble her losses, plus (potentially) attorneys fees and other costs. It’s meant to compensate and it’s meant to punish — the closest thing in the civil law to a criminal claim.

Although the intent of RICO was to destroy the mob, however, the language of RICO was not limited to the mob — or even to organized crime. Congress instead chose to draft RICO broadly. This has allowed creative lawyers to make RICO claims that encompass all sorts of activities that bear little or no resemblance to the traditional RICO claim against a mafia family; indeed, today, RICO claims against the mob (or street gangs, their modern-day equivalent) are actually quite rare. Most of today’s RICO claims are against “legitimate businesses” — banks, manufacturers, stockbrokers, etc. — who are alleged to have engaged in a pattern of wrongdoing.

RICO is enormously complex, and this discussion will necessarily omit much nuance. (Here”’s a decent primer.) As these nuances become important to the story of the Abu Ghraib RICO case, we’ll touch on them.

Stripped of nuance, a RICO claim has a relatively simple engine with only a few moving parts. There must be a (1) defendant or group of defendants — the wrongdoers. There must be a vehicle for the wrongdoing — (2) the “RICO enterprise.” The RICO enterprise can be a legitimate or illegitimate business, but it must have a structure and life separate from the wrongdoing itself (and, for one RICO claim — a 1962(c) claim — it must be distinct from the defendants; more on this later). The defendants must have (3) interacted with the RICO enterprise through a “pattern of racketeering.” And the plaintiff must have (4) sustained injuries from the defendants’ different from injuries sustained as a result of the racketeering acts themselves.

The moving parts of a RICO claim become clearer when put into their original context — the mob. The RICO defendants are the mobsters. The RICO enterprise could be, say, the Teamsters — a legitimate organization that’s been infiltrated by the mafia — or a numbers scam — a continuing enterprise that has a structure and continuing operations. The mobsters run the Teamsters (or the numbers scam) through a pattern of racketeering activity — bribes, threats, fraud, murder, extortion, blackmail, etc. — which continues over time and injuries multiple victims. The victims of the wrongdoing suffer injuries not merely from individual acts of wrongdoing, but from the entire pattern of wrongdoing.

The nub the Abu Ghraib plaintiffs’ claim is that certain U.S. civilian contractors and their employees ran the interrogations at the Abu Ghraib prison through a pattern of racketeering activity. The interrogations (or Abu Ghraib itself) are, loosely put, the RICO enterprise. (The RICO enterprise alleged here is actually more complex than that; we’ll get into the specifics tomorrow.) The racketeering activity — threats, torture, extortion, sexual batteries, etc. — continued over time and involved multiple alleged victims. The victims were purportedly injured not merely by the specific acts allegedly perpetrated on them, but by the entire RICO scheme, the whole process of interrogations and imprisonment.

Tomorrow, we will go into further detail with the plaintiffs’ claims, as well as discuss the Abu Ghraib defendants’ responses to those claims. As you’ll see, even certain basic elements of the plaintiffs’ claims are being disputed.