Bridging a gap in human rights law: prisoner of war abuse as "war tort".

Author:Garfield, Aaron E.

    The exposure of detainee abuse at the Abu Ghraib prison facility in Iraq put into sharp relief the moral hazards of a war on terrorism. The question was thus posed: when a state is faced with its own vulnerability in the aftermath of an attack, how will the rule of law survive? Perhaps unsurprisingly, clever litigators have responded to the Abu Ghraib debacle by seeking novel theories of tort liability. Their goal of prosecuting perpetrators of torture is a challenging one. Numerous obstacles stand in their way, not least sovereign immunity and the immunity of coalition forces in Iraq from local jurisdiction. (1)

    But an Achilles heel in the U.S. Government's immunity is the rising use of private military firms (PMFs) (2) in capacities traditionally reserved for government agents. Along with the military and civilian government personnel at Abu Ghraib were numerous private employees of the independent contractors CACI International, Inc., and Titan Corporation. (3) These employees operated interchangeably with their government counterparts as interrogators and translators, and are thus implicated in the abuses that took place at Abu Ghraib. (4) Yet, they are not clothed with the immunity of a state actor, as they are employees of an independent contractor and not the government. (5) Encouraged by recent successful suits against corporations for violations of the law of nations, (6) human rights activists have filed Alien Tort Statute (ATS) claims against CACI and Titan in federal court claiming, inter alia, torture, crimes against humanity, and war crimes. (7) We are thus faced with a dual proxy: the ATS acts as a proxy in American courts for international criminal law, and the PMFs act as a proxy for the U.S. Government.

    These PMFs should be held accountable for violations. Beyond vindicating ethical and human rights principles, to hold such firms liable would provide a clear incentive to report government misconduct in an environment usually fraught with danger for military whistleblowers. It is the rare soldier that will risk retribution from her chain of command and fellow soldiers to bring attention to witnessed misconduct. The cost-benefit analysis for a PMF employee is different. Although engaged in military operations, a PMF employee is not in the military and so not subject to its chain of command or the implied code of silence ingrained in military culture. In fact, in the face of potential liability, PMFs and their employees will retain a very clear pecuniary incentive to report any misconduct they witness.

    Although the ATS coupled with government use of PMFs may provide for a theory of liability, the tools of human rights law often wielded by activist litigators are not up to the task. Human rights norms such as the torture prohibition are relatively underdeveloped, leaving gaps that need to be filled by more established and enforceable norms such as those provided by international humanitarian law. This Note will argue that the torture of detainees at Abu Ghraib does not, as a violation of human rights law, provide an adequate cause of action under the ATS. Instead, the war crime of prisoner of war (POW) abuse would provide a more doctrinally and strategically sound cause of action that can serve as an effective stand-in for the weaker torture prohibition in human rights law.

    This Note will proceed in three parts. The first part will provide a brief introduction to the relevant facts surrounding the events at Abu Ghraib and the employment of contractors, followed by a discussion of the historical roots and current status of the ATS. The second part will focus on the limited scope of the torture prohibition, both in substance and application, and suggest an alternative cause of action based on POW status. The third part will show the problems and potential of assessing liability for private contractors by applying the crime of POW abuse as a "war tort" in the context of the ATS.


    1. PMFs at Abu Ghraib

      By the time of Operation Iraqi Freedom's initiation, PMFs had already become a major force within the Department of Defense. Headed by former high-ranking officials in the national security establishment, (8) PMFs were making a tidy business out of filling the gaps left by budget cuts precipitated by the "peace dividend" following the end of the Cold War. (9) Currently estimated as a $100 billion industry, PMFs have increased their share of total military operations from 1% during the Persian Gulf War to as much as 30% in Iraq today. (10) The services rendered range from the mundane, such as food services provided by Kellogg, Brown, and Root, (11) to the sensitive, such as the provision of highly trained former Special Forces soldiers, by firms such as Blackwater, for personal security details. (12) Even highly classified work was outsourced, most notably to CACI and Titan.

      That these contractors are engaged in work usually considered within the purview of governments gives rise to the question of whether these contractors maintain the privileges and immunities guaranteed to traditional governmental actors. These firms operate in a novel legal environment, and their status under international law is hard to pin down. Arguably, PMFs may be considered agents of the U.S. government and thus immune. Though they are independent contractors and not U.S. officials, ask a detainee being interrogated and he'd likely say otherwise. Indeed, CACI and Titan employees have been employed in a manner virtually interchangeable with U.S. soldiers or officials of other government agencies.

      CACI, a major supplier of "intelligence solutions," (13) was awarded a $20 million contract to provide interrogation support to both the Joint Debriefing and Interrogation Center (JDIC) at Abu Ghraib and the Coalition intelligence staff, or "C2". (14) Titan was awarded a contract to provide linguistic support to operations in Iraq, including interrogations. (15) The Statement of Work provided in the CACI contract states that the employee must "coordinate and work in conjunction with [Military Police] unit [sic] and [Military Intelligence] units assigned to support operations" at the JDIC. (16)

      The Statement of Work's mandate seems to have been honored in practice. For example, the author of this Note, while assigned as an analyst to the U.S. National Intelligence Center-Baghdad (NIC), (17) worked closely with a CACI employee who acted both as an interrogator and as a liaison between the analysts at the NIC and the interrogators at Abu Ghraib. Titan employees worked in a narrower capacity as translators during interrogations, (18) but FBI documents released in response to ACLU Freedom of Information Act requests suggest that contracted linguists have played a pivotal role throughout the U.S. interrogation system, including at Guantanamo Bay Naval Base and Abu Ghraib. (19) As a result, CACI and Titan employees are closely associated with the worst abuses of detainees in U.S.-controlled prisons.

      Military regulations, Congress, and the courts all treat firms like CACI and Titan as independent contractors not subject to the immunities of the U.S. government. A U.S. Army manual on the law of war explicitly states that contractors "accompanying the force" are not under the direct supervision of military personnel. (20) The manual also notes that contractors cannot perform inherently governmental functions. (21)

      With the Federal Tort Claims Act (FTCA), Congress exempted the federal government from tort liability under specified conditions, such as where a claim arises in a foreign country or from combatant activities. (22) However, the FTCA explicitly excludes private contractors from its definition of who may be considered to be acting as an agent or instrumentality of the U.S. government. (23) The courts have not specifically dealt with the issue of independent contractors employed in traditionally governmental functions in the military operational context. They have, however, explicitly excluded contractors from immunity in cases involving outsourced correctional officers in penal and immigration facilities. (24) As with outsourced employees at domestic facilities, the flow of government authority in Iraq stops at the contracting official, and does not continue down to the contracted firm or its employees.

    2. PMFs' Implementation of Bush Administration Detainee Policy

      CACI and Titan may or may not be liable for their association with the aberrant activity pursued by a few low-ranking soldiers at Abu Ghraib, (25) but likely could be held liable for supporting official policies that are violative of international law. Except possibly as to one Titan employee, no publicly available information suggests that the contractors drew outside the lines like Lynndie England of Abu Ghraib. (26) However, contracted employees presumably engaged in conduct that, in accordance with the Statement of Work's specification, conformed to local standard operating procedures. (27) Thus, the Abu Ghraib scandal is of only secondary interest relative to the Abu Ghraib policies that fostered POW mistreatment by actively allowing conduct that bent, blurred, or crossed the boundaries of detainee treatment standards.

      Traditionally, interrogation techniques were governed by Army Field Manual 34-52: Intelligence Interrogation. (28) The techniques listed in the manual are innocuous but effective, ranging from repetition to the silent treatment. (29) The manual notes that direct questioning--i.e., using no technique at all--is the most effective, with a success rate reaching 95%. (30) The manual strictly prohibits any mistreatment and excerpts relevant portions of the Geneva Conventions. (31)

      A recently released update of the manual (32) has been the subject of a great deal of controversy. The content of the manual is of such a sensitive nature that the Bush Administration went so far as to threaten its first...

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