The Abu Ghraib RICO lawsuit: The Defense

(Part II of a series.)

What do you say to a claim that you engaged in an international, illegal enterprise to torture, beat, rape, and murder Iraqi detainees at the Abu Ghraib prison? (See these prior posts regarding the RICO and other claims against the Abu Ghraib civilian contractors.) Well, if you’re The Titan Corporation, you might say something like this (caution: large PDF file):

Plaintiffs — ten Iraqis detained in U.S. military detention facilities located in Iraq … — seek to recover against individual civilians and their corporate employers for alleged mistreatment during plaintiffs’ confinement and interrogation by the military in this time of war. No plaintiff states a claim against any specific employee of The Titan Corporation (“Titan”), and plaintiffs stated forthrightly in their opening press conference that they had no specific evidence linking Titan to the mistreatment alleged …

….

Titan provided linguists … to the U.S. military to translate during the interrogation of detainees ….

[Titan’s allegedly wrongful] acts were undertaken, according to plaintiffs, at the behest of, and in conspiracy with, the United States military (the so-called “Torture Conspiracy”) to secure more information from the plaintifs for use in the United States’ war in Iraq.

….

The fundamental premise of this action is that federal law allows alien plaintiffs to bring a civil damages suit against military contractors for injuries suffered at a United States military detention facility in a war zone. This premise is fatally flawed and dooms plaintiffs’ claims. The injuries defendants claim to have suffered are a result of actions by the military in support of combat operations in a foreign war zone. As plaintiffs freely admit, these acts were taken under the military’s control, with the participation of the military, to achieve military goals. Nonetheless, perhaps recognizing that such claims could not be brought against the United States Government, or its employees, plaintiffs have not sued them. Instead plaintiffs have attempted to file the same claims against Titan.

That these claims could not be brought against the government, however, means that they can not be brought against Titan. …

From Titan’s memorandum in support of its motion to dismiss the plaintiffs’ Second Amended Complaint. (Large PDFs; note that Titan and the other defendants have raised different and/or additional defenses, some of which will be addressed in later installments.)

It is not enough to see a wrong, and want to right it. The Abu Ghraib RICO lawsuit raises profound issues regarding how the U.S. Government may wage war — and how these issues are resolved will affect how future wars are waged. May U.S. civilian contractors be liable for their participation in alleged war crimes committed by the U.S. government in the course of hostilities against a foreign power on a foreign shore? If they may, does the degree of their participation of those war crimes matter? Does it matter if they were “just following orders”? Does it matter if they have no real choice? Does it matter that there’s a war on?

Those are the central questions raised by the Abu Ghraib RICO suit, and they go directly to central question of the law: Which wrongs deserve to be righted, and which do not? And which wrongs are not wrong at all?

These are not existential questions bearing only on ephemeralities. Indeed, as the Abu Ghraib plaintiffs and Titan have found out, these questions are very real, and how they are answered have consequences.