Commentary

The Government Made Me Do It?

Hmm, CACI can’t be very happy about this development. Almost about two years ago it announced the release of Our Good Name, A Company’s Fight to Defend Its Honor and Get the Truth Told About Abu Ghraib.

Written by company chairman Dr. J. Phillip (“Jack”) London and the CACI team who defended the company during the crisis the book recounted how the Iraqi Abu Ghraib prison scandal of 2004 dragged the Virginia-based contractor into the spotlight.

For those that have forgotten, CACI was one of two companies implicated in the scandal. CACI, provided interrogators and the other, Titan, provided translators. CACI provided 27 interrogators to work in detention centers in Iraq. Several worked at Abu Ghraib, including Steven Stephanowicz, who was named in General Antonio M. Taguba’s report on events in Abu Ghraib.

Among other things Gen. Tabuba found:

In general, US civilian contract personnel (Titan Corporation, CACI, etc …), third country nationals, and local contractors do not appear to be properly supervised within the detention facility at Abu Ghraib. During our on-site inspection, they wandered about with too much unsupervised free access in the detainee area.

Given that it was written by CACI and published by Regnery a conservative publishing house, it is unsurprising that the book found CACI blameless of all charges and that it was the victim of “erroneous and malicious reports by a rampaging media.”

But that was then and this is now. Most people have moved on and relegated Abu Ghraib to the ash heap of history and CACI had successfully put all this behind it. Indeed, just yesterday its latest quarterly results were announced

We are pleased to report record third quarter net income of $26.7 million, or $0.87 diluted earnings per share. This net income was a 21.6 percent increase over net income of $22.0 million, or $0.72 diluted earnings per share, for the same period last year. The 16.3 percent increase in revenue in the quarter was driven by organic growth of 14.2 percent, reflecting the continued strong performance of our defense and intelligence businesses.

Indeed, it won approximately $65 million in previously unannounced awards from the Intelligence Community.

And so CACI must be very happy; at least it probably was until this past Tuesday when the Center for Constitutional Rights (CCR) announced that it had asked the Supreme Court to take up the case against CACI and L-3 Services (formerly Titan).

CCR argues that the Supreme Court should hear the case because the Court of Appeals decision of September 11, 2009, gave corporate government contractors more protections than even U.S. soldiers enjoy, and constituted judicial overreaching. The lawyers also argued that the military’s own investigations had found CACI and L-3 employees participated in the torture, humiliation and dehumanization of the Iraqi civilians detained at Abu Ghraib. Finally, the lawyers argued that corporations could be held liable for war crimes, including torture, under international law.

The case it refers to is Saleh v. Titan, first filed in 2004, which is a federal lawsuit brought by more than 250 former Iraqi prisoners against private contractors CACI and L-3 Services that alleges the companies’ employees participated in torture and serious abuses while they were hired to provide interrogation and interpretation services, respectively, at Abu Ghraib and other detention facilities in Iraq.

The suit charges defendants with torture and other war crimes, as well as common law torts including sexual assault and battery, and negligent hiring and supervision. The acts to which the plaintiffs alleged they were subjected at the hands of the defendants and certain government co-conspirators include: rape and threats of rape and other forms of sexual assault; being forced to watch a family member tortured and abused so badly that he died; repeated beatings, including beatings with chains, boots and other objects; forced nudity; hooding; being detained in isolation; being urinated on and otherwise humiliated.

The history of the case thus far is that on November 6, 2007, U.S. District Court Judge James Robertson denied CACI’s motion for summary judgment and ordered a jury trial against CACI. CACI appealed this ruling to the Court of Appeals for the District of Columbia. In the same Order, Judge Robertson granted Titan’s motion for summary judgment, dismissing the case against Titan.

On September 11, 2009, in a 2-1 decision, a panel of the Court of Appeals for the District of Columbia affirmed the dismissal of all claims against Titan/L-3, and, reversing the district court’s decision, also dismissed all claims against CACI. Judge Merrick Garland, in his lengthy dissent, critiqued the “breadth of the protective cloak” that the majority “cast over the activities of private contractors.”

When one reads the suit one finds gems like this:

Respondent CACI admitted that CACI management was present at Abu Ghraib, and had the authority to stop their employees from torturing detainees. Respondent CACI claimed that their employees were nonetheless under the military’s command and control.

Of course, one wants to hear what CACI has to say about this new suit but one hope that its defense is something other than they were just following orders. Nuremberg-like defenses do not have much credibility these days. The government made me do it is not a sufficient defense for many regular military personnel and even less so for private contractors.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.