This is the third installment of “what’s shakin’ in the Abu Ghraib RICO lawsuit.” Prior installments are here and here; prior posts on the subject are here and here.
In this installment: More torture allegations! Greedy plaintiffs’ attorneys! The decline and fall of the automatic spell check function! Fun with the hearsay rule! More on the “the government was involved so it must be OK” defense! And much, much more!
For those just joining us, a public interest group filed a class-action RICO lawsuit on behalf of about a thousand Abu Ghraib detainees, claiming that several civilian contractors and their employees conspired to torture, maim, sexually abuse, and otherwise mistreat prisoners. The allegations are disturbing, but the evidentiary support for them is a bit thin. Moreover, even if the allegations are proven, it’s not at all clear to me that the corporate defendants — the deep pockets in the case — should be held responsible.
So, with all caveats firmly in place, we join our story . . . .
A. Torture with a T. The public interest group pursuing the case, the Center for Constitutional Rights (CCR), has sought a preliminary injunction against CACI, one of the civilian contractor defendants. CACI supplied interrogators for Abu Ghraib and is alleged, among other things, to have engaged in systematic mistakes and abuses in hiring and training the interrogators it sent. “Too many gung-ho incompetents” might be the quickest way to phrase it. The injunction seeks to compel CACI “to deploy only properly trained interrogators to Iraq and to train immediately any untrained interrogators who remain in Iraq.” Seems fairly reasonable — until you get to the fine print.
B. Why I should give up worrying and learn to love the hearsay rule (and spell checkers). The support for the injunction is largely supported by prior published reports by military investigators on the abuses at Abu Ghraib. Though damning and disturbing, these reports tend not to focus on CACI’s activities. Even if it’s reasonable to argue from these reports that CACI’s employees may have known about certain abuses, its not clear that CACI’s employees were directly responsible for abuses because of poor training or hiring decisions by CACI — the alleged bases for CACI’s liability. (To be fair, CCR also submitted declarations and affidavits regarding the training issues, although they seem to contain little more than generalities.)
Some of the most sensational allegations regarding torture are in a declaration by one of the CCR attorneys, Shereef Akeel (scroll to Exhibit J in this document). The affidavit, however, shares the flaws of many of the government reports — it doesn’t tie CACI to the alleged wrongdoing. Moreover, the affidavit itself is primarily a mish-mash of second hand allegations by nameless accusers, and includes an impressive number of typographical errors for its length. (I recognize the ancient rule of justice that, in criticizing another’s typos, you invariably commit your own. Mea culpa in advince [sic].) Here are some of the highlights:
2. In connection with my role as counsel, I traveled to Iraq on August 6, 2004, and returned to the United States on August 21, 2004. During my time in Iraq I personally interviewed three family members who were arrested from their home in Bhagdad [sic] at approximately three am on or about JUly 12, 2004 and released without charge on July 25, 2004.
3. One was a boy who was born on February 18, 1989. He described the arresting official as a blonde American with a goatee who was wearing military clothing.
4. The boy was hooded, taken to prison, and placed in a wooden structure. He was prevented from eating, drinking water, sitting, or sleeping. He described being sexually abused by Americans who placed their fingers in his anus.
5. The second was the boy’s brother, a young man who was born on May 9, 1986. This young man was stripped naked, called names, and prevented from eating and sleeping.
7[sic]. The third was the uncle to the boy and young man. He was born on July 18, 1984. The uncle was stripped naked, threatened with death, forced to stand for long periods of time, and physically prevented from sleeping.
9[sic]. The uncle was interrogated by an American in civilian clothes with Asian features. The interregator threatened to torture him and rape his sister.
10. The room in which he was interrogated had electric cables handing [sic] on the walls. There was a sign saying “Admit it” in Arabic.
….
Pretty much all of the above is hearsay, which is generally unadmissible in Court. It is true that hearsay can be admissible on a hearing for a preliminary injunction, but, even in this case, hearsay evidence is usually given much less weight. Hearsay evidence as vague as that set forth in Attorney Akeel’s affidavit is difficult to credit at all.
Still, Akeel states that he has three witnesses who will will to to travel to the United States to testify at the preliminary injunction hearing. If these witnesses do show up at Court, and are able to directly implicate CACI employees, it would be a tremendous boon for the plaintiffs. Unfortunately, before any of that happens, the Court has ruled that it will first decide CACI’s motion to dismiss, which will likely take months.*
C. Nobody likes a copy-cat. Not long after CCR filed its RICO lawsuit on behalf of Abu Graib attorneys, a group of for-profit legal “enterpreneurs” filed a nearly identical RICO lawsuit in another district. Ahhh, the plaintiffs’ bar: why let a nonprofit have all the fun, when we can make a profit? The CCR has moved to enjoin its for-profit twin from proceeding and “mucking everything up” (legal term).
D. The Government Made Me Do It. Meanwhile, all of the represented defendants have moved to dismiss the case. The individual defendants have largely challenged the jurisdiction of the U.S. courts to hear the claims against them; the corporate defendants (CACI and a company called Titan) have generally argued that, regardless of the factual accuracy of the allegations, they shouldn’t be liable. They also challenge the plaintiffs’ standing to bring these claims, among other things.
I’ll focus on Titan Corporation’s motion, one of the defendant contractors, because it illustrates a phenomenon that pervades nearly every RICO case: The Quest for the Distant Deep Pocket. There’s not much alleged against Titan — it supplied translators for the prisons, and there’s little claim that its translators directed or engaged in any torture — much less that such actions should be imputed to Titan generally. There’s also the question as to whether Titan should be liable, since the prison wasn’t under Titan’s control, but rather under the control of the U.S. military. Are Titan translators really supposed to restrain (or refuse) the direction of heavily armed MPs and Military Intelligence Officials? (CACI makes similar arguments in its motion to dismiss; see here for a detailed discussion of this defense.)
E. “Mammon, whose blood is rivers of money!” So, Titan seems, at best, tangentially related to the allegations in the case. Its presence in the case adds a ton of complexity. Why did CCR nonetheless name them as a defendant? All together now: Money, baby. CCR may be a non-profit, but it wants to make sure its clients get paid. With the exception of CACI, many of the other defendants seem to be, well, credit risks for a gazillion-dollar claim, if you take my meaning.
This isn’t to say that CCR’s claim against Titan is total B.S. — I don’t think it is. But CCR’s stretching with Titan. It’ll be interesting to see if the reach is rewarded, or if Titan escapes.
More later.
von
*This bit is only for the lawyers: The Court’s ruling to take up CACI’s motion to dismiss before addressing the motion for a preliminary injunction was a huge tactical victory for CACI. Not only did it delay any injunction by months, but it likely deprived the plaintiffs of most discovery while briefing on the motions to dismiss were ongoing. No doubt, CCR would have loved to pour through CACI’s files in connection with their preliminary injunction motion, and use whatever facts they developed to file a third, or fourth amended complaint that address CACI’s dismissal arguments. (Indeed, the possibility of such discovery was probably one of the factors — though certainly not the only factor — in filing the preliminary injunction motion.) Now, CACI can try to delay or limit discovery until briefing on the motions to dismiss is complete, gaining a significant tactical advantage. (There’s no guarantee that CACI will be successful, but it can try.)
Thanks for this, Von.
I find the whole RICO thing impossibly confusing – but this clarifies it a lot.
To my mind, the issue of civilian contractors carrying out illegal acts in a foreign country under the protection of the US military, and – apparently – remaining entirely immune from prosecution, makes the need for an ICC absolutely clear. (But if you disagree, or agree with caveats, I’d very much like to read your elucidation of it.)
I’m certain you can’t be a real lawyer, btw. You write too clearly!
I doubt it has all that much to do with the money.
Turn it around: if you accept Titan’s arguments is there any way at all for them to be held accountable? They’re using the military as a shield for liability, yet they are not subject to the military’s discipline, the Geneva Conventions, the code of military justice, public information requirements or anything else. Some of the contractors named in the Taguba report haven’t even been fired, let alone charged.
Link:
(See also this Washington Post article. Stephanowicz now seems to be working for CACI in the U.S.)
(ctd). There is one law that might apply. It’s called the a href=”http://www.law.com/jsp/article.jsp?id=1083979576106″Military Extraterratorial Jurisdiction Act. But according to that article, it doesn’t apply to abuses that result in less than a one year prison term, and it does not apply to companies that signed a contract with the CIA at all. According to that article, “U.S. authorities are looking into at least two cases in which Iraqi detainees died after being questioned by CIA contract interrogators. So some cases might turn on the technicality of what government agency signed the contract.”
Then there’s the federal torture statute, which makes it a crime to commit torture “under color of law” and outside the United States. But “under color of law” could be read narrowly to exclude contractors. And United States is defined by the statute as including “Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.” So I’m not sure Abu Ghraib counts as outside the United States.
Also, criminal laws can go ignored in practice if the DOJ chooses not to bring charges. And you can see a lot of reasons, both illegitimate and legitimate, why the DOJ would not go after a CIA contractor over the Abu Ghraib scandal.
In short, there is a very real possibility that a contractor could torture and murder a detainee and face no liability at all.
If you were a lefty civil liberties attorney how would you feel about this? I hate it, and I’m a moderate on these issues compared to CCR.
Which doesn’t mean RICO is the right means to get relief. I don’t know. But I very much doubt that finding the deep pockets is the only thing motivating these lawyers.
As for Titan as well as CACI: I’m sure they wouldn’t MIND getting another deep pocket, but as much as anything I bet they want discovery.
I too appreciate this, though I think you are being a bit too flippant about the Titan connection. If they had gotten discovery, wouldn’t they have been able to have access to a much wider range of documents, some which may indicate Israeli connections, a very difficult to nail down rumor that is floating around? In addition, it might have provided a route to get at classified information, in that if Titan translators without proper security clearance were given access to classified information, it could then be argued that the information was not classified and then be introduced into court.
I’m not a lawyer, so be gentle with me…
“and – apparently – remaining entirely immune from prosecution, makes the need for an ICC absolutely clear.”
I’m not sure about that. My (unresearched) concept is that they are criminally liable under US codes. In fact don’t they have to be for a RICO statute case to be possible at all?
The problem for me (with RICO cases in general) is that you get high levels of punishment with merely civil level judicial protections.
I agree that the DOJ might not want to prosecute, but with all crimminal laws you are going to have that problem. The ICC has all sorts of ancillary problems. Not the least of which is that it would almost require the US military for outside of Europe enforcement capabilities. Which leads us right back into the Europe wants to make the rules without paying for enforcement that we have seen in other contexts.
I doubt it has all that much to do with the money.
The usual reason to bring a civil RICO claim is money. But, it’s true, I might be being too flip.
My (unresearched) concept is that they are criminally liable under US codes.
That’s absolutely correct. To have a RICO claim, you must allege a “predicate act,” which must be an indictable offense.
I’m late, so further responses will have to wait until the morning.
Quick correction: I meant to write you must allege a pattern of predicate racketeer acts — which is, by definition, more than “a” predicate act. Apologies.
I’m not sure about that. My (unresearched) concept is that they are criminally liable under US codes.
Well, yes. But, that is one of the functions of the ICC: “To take over when national criminal justice institutions are unwilling or unable to act” – “Nations agree that criminals should normally be brought to justice by national institutions. But in times of conflict, whether internal or international, such national institutions are often either unwilling or unable to act, usually for one of two reasons. Governments often lack the political will to prosecute their own citizens, or even high-level officials, as was the case in the former Yugoslavia.”(cite)
If war crimes have been committed by American civilian contractors, and the US is – “lacking the political will to prosecute their own citizens” (as appears to be the case) then what is the remedy other than the ICC? There is none, that I can see.
But, I’d very much like to hear Von’s thoughts on the matter.
What are the indictable offenses the complaint alleges (PDFs break my home computer.)?
In some web pages I was reading, it said that the number of RICO suits exploded in the 80’s, even though the legislation was from 1970. I’m curious, Von or anyone, can we see some event as key in the expansion of RICO’s?
Katherine —
Bizarrely, the complaint doesn’t appear to specifically allege the predicate acts in the relevant counts; though this doesn’t make the complaint deficient, it ain’t the norm (IMHO). Still, identified predicate acts include murder, threat of murder, extortion, and obstruction of justice. In addition, assuming that the sexual battery and other charges are indictable under state law and carry a penalty of more than one year imprisonment (and many likely do), these too can count as predicate acts. See 18 USC 1961(1) (“defitions — racketeering activity”) for the complete list.
I’m curious, Von or anyone, can we see some event as key in the expansion of RICO’s?
Lawyers started to realize that the Act was written broadly enough that, potentially, it could apply to a broad range of garden-variety fraud claims. With RICO’s treble damages provision, it became very tempting to bring a RICO claim in cases that, in the past, would be deemed as simple fraud.
As for whether/how Titan should be held accountable: it’s not clear they did anything wrong, here. If you accept Titan’s characterization of the SAC, they provided translators. The translators were directed by the government. Did Titan have control over those translators? Could Titan reach out, from its corporate offices in the U.S., and contravene the direct instructions of MP on the ground in Iraq?
That’s the nub of Titan’s argument; an argument that the law recognizes as part of the military contractor defense. Perhaps for good reason.
Katherine, Von:
Thanks for the invaluable work you do here. You may become my first bookmark in the morning. And on this particular issue, it’s you and Peter Singer holding the flashlight.
When I was looking into the civilian contractor question in the immediate aftermath of Abu Ghraib, for ABA Journal, I seized on the Military Extraterritorial Jurisdiction Act — only to learn *after* deadline that CACI’s contract was with Interior (not even the CIA!). The law, passed in 2000 after a half-decade of efforts by advocates for military families, has as far as I know never been tested. As you point out, institutional reluctance to acknowledge, let alone prosecute, makes use of *any* statute difficult, but that particular fillip feels positively diabolic.
I have also thought, looking at the sequence from the February 2002 “enemy combatant” letter to the Gonzalesmemo to the fainthearted response to the already timid Schlesinger report, that the conditions for the ICC have been met in a loud lockstep. All the arguments being made that complentarity prevents prosecution of U.S. forces have been eviscerated by that paper trail.