After nearly 20 long, agonizing years, three Iraqi victims of torture detained in the scandal-ridden Iraqi prison Abu Ghraib had their day in court last April. The case is now back in court after the jury failed to reach a unanimous verdict and the judge declared a mistrial in May. The good news was that even the defendants’ attorneys told the jurors they would not assert the plaintiffs weren’t tortured and they accepted that the brutal treatment violated U.S. and international law. The bad news was that the leadership could not be held accountable. The defendant, CACI Premier Technology, Inc. (CACI), admitted to the egregious conduct of its employees but argued it is immune from civil liability as a contractor to the U.S. Army. The Army, for its part, then claims immunity from suit under federal law.
The U.S. Army awarded CACI a contract in 2003 for $32 million to provide interrogation services at the Abu Ghraib prison. The plaintiffs are suing for damages from torture and brutal treatment while detained there. The plaintiffs’ attorneys at the Center for Constitutional Rights (CCR) reached out to me to conduct medical and psychiatric evaluations of the men that had been detained and allegedly tortured. I traveled to Erbil, Iraq, in January 2013 to assess them.
My criticism of the events at Abu Ghraib dates back to February 2005. I am a career Army officer, not a political activist. But, I could not fathom how the medics looked away from the outrageous actions and cruelty inflicted on the detainees. Those of us from the Vietnam era were schooled on the My Lai massacre and criticisms over the actions of the U.S. military. Commanders are responsible for the ethical and moral climate of their units. They are also responsible for what the men and women who serve under them do and don’t do. Medics carry dual responsibilities as officers and clinicians. All officers take an oath to uphold the U.S. Constitution, and medics are obligated to also uphold the ethical principles dating back to Hippocrates and fixed in the Geneva Conventions.
The more I learned about Abu Ghraib, the more I saw the mess. The images of a hooded man standing on a box with electric wires attached to his fingers and dogs growling at detainees in orange jumpsuits exploded across the U.S. and international media and shocked the consciousness. The photographs of prisoners piled up in pyramids and soldiers gloating over them looked like scenes from a horrifying version of Animal House.
I recall from my active-duty service and mobilizing for the First Gulf War how hard it would be to launch military operations in Iraq in 2003. But the political leadership did not want to think or talk about it. They muted the cautionary voices of General Colin Powell, former Chairman of the Joint Chiefs of Staff – “if you break it, you own it” – and General Eric Shinseki, Chief of Staff of the Army at the time, on the challenges of mobilizing and in conducting operations for a military occupation.
Now twenty years later, with continuing instability in Iraq and troubling withdrawal from Afghanistan, Abu Ghraib takes some of the spotlight as a teaching case of how things can get sloppy and go terribly wrong.
The Federal Courtroom in Alexandria, Virginia
CACI has argued that their personnel and corporate leaders are not responsible for bad or otherwise illegal conduct. The responsibility, they claim, lies with the U.S. Army and Department of Defense that awarded them their contract. As reflected in the opening statement last week by John F. O’Connor Jr., an attorney for CACI, their defense relies on a stipulation in contract law called “borrowed servant.” Borrowed servant doctrine holds an employer liable for the actions of a temporary employee acting under the employer’s control and not the employee, as the judge explained to the jury in the first trial. In this case, the employer – the U.S. Army – invokes immunity for its actions in a war zone. CACI supplied the “borrowed servants” to the U.S. military to conduct interrogations, but was not legally responsible for what the employees did or did not do.
I am not a lawyer and not qualified to debate the issue, but I managed big healthcare contracts and know the challenges in carrying them out. Providing medical care under contract is considered a support service unlike awarding a contract to buy equipment or weapons systems. Operating prisons and conducting interrogations are service support contracts like running hospitals and clinics. There is a complicated and fuzzy relationship between the military that offers the contract, and the private company that gets the award. The lines of responsibility and authority are blurred and subject to the informalities of the relationships between the parties. The bottom line is that the relationships can unfold such that “no one is in charge and everyone is in charge.”
Indeed, the jurors in the first trial explained they could not reach a judgment in significant part due to their failure to come to agreement on the borrowed servant doctrine and scope of employment.
Adding to the stew, the U.S. Army had to mobilize and send in Army Reserve units that had not been adequately trained for the missions. The men and women serving in the Army Reserve are dedicated professionals and train diligently for their missions. But, staging them for operations in a combat zone is hard, and the added challenge of coordinating their duties and responsibilities with contractors like CACI makes it even harder. These complexities played out in Abu Ghraib.
Abu Ghraib became flooded with prisoners, living conditions were harsh, and staffing was short. CACI contends that it faced obstacles in recruiting personnel to work as interrogators. Because it was short-staffed, the company promoted screeners and others to perform duties that they had not been fully trained to undertake. Abu Ghraib turned into a cesspool. CACI had no choice but to go along with the program because the Army demanded that its contracted workers step up to perform the mission.
I was wrong in 2005 for calling out the medics for not reporting torture and inappropriate conduct. Now, I understand at least how it could happen. The toxic brew of the quick run up to war and mix of military staff with contracted workers added to chaos and confusion at Abu Ghraib. As I reviewed the situation, I felt that the scene was so muddied that it is nearly impossible to point the figure to just one bad actor. It is understandable that a medic or officer watching from the sidelines could surmise: “no one is in charge” such that raising this will be futile, and, under blurring and contentious circumstances, “why should I step up and possibly threaten my career?” Indeed, senior military leaders told me about “taking a bullet for their country” but not being willing to risk their careers.
The record of accountability for torture and brutal treatment of prisoners has been poor. CACI asserts that its corporate leadership is not accountable for the rogue activity of its employees that answered to the Army leadership. In their view, the Army borrowed these workers and had full control of them. A confounding factor is that the Government authorities acting in their official capacities then assert immunity that protects them.
Near-blanket immunity opens the door to policies and practices that could violate the most fundamental human rights. We are seeing that the cover of immunity and subtleties of contract law weaken the case against CACI and diminish accountability. It’s a shame that the illegality and noxious scope of torture and cruelty can get buried in the courts and lost in public memory after 20 years. The presiding judge, Leonie M. Brinkema, remarked to the attorneys after the jury was dismissed in May, that “what happened in this case is absolutely appalling. It should never happen again.” Hopefully our legal system has the wherewithal to help that become a reality.