Stunning Victory as US Court Rules That Contractors’ Treatment of Prisoners at Abu Ghraib Constituted “Torture, War Crimes, and Cruel, Inhuman and Degrading Treatment”

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It has taken ten years, but on Wednesday (February 21), a US judge, District Judge Leonie M. Brinkema of the District Court in Alexandria, Virginia, ruled that “the treatment of three Iraqi individuals formerly detained at the infamous ‘hard site’ at Abu Ghraib prison in Iraq constitutes torture, war crimes, and cruel, inhuman and degrading treatment, based on a thorough review of US domestic and international law.”

The victory was described in a press release by the Center for Constitutional Rights, who, with other lawyers, first submitted the case ten long years ago, under the Alien Tort Statute (ATS), which “allows non-US citizens to sue for violations of international law committed abroad that ‘touch and concern’ the United States. I wrote about it back in September, when Judge Brinkema allowed the case to proceed.

As I also explained at the time:

In the long legal journey to this important day, as CCR stated, “the Fourth Circuit denied CACI’s attempt to have the case dismissed under the ‘political question’ doctrine” in October 2016, and in June this year the District Court “affirmed that war crimes, torture, and cruel, inhuman and degrading treatment are well-recognized and definable norms and thus fall within the court’s jurisdiction” under the Alien Tort Statute. The court then “ordered both parties to brief whether the record supports a finding that the plaintiffs suffered these violations,” and, as CCR noted, “Shortly after, CACI moved to dismiss the case,” the move that has just been turned down.

This week’s ruling also made it clear that the three men — Suhail Al Shimari, Asa’ad Al-Zuba’e and Salah Al-Ejaili — “have sufficiently alleged that employees of private military contractor CACI Premier Technology conspired to commit and aided and abetted these crimes,” as CCR’s press release also explained.

CACI is the defendant in the case, Al Shimari v. CACI, and, as CCR described it, its lawyers have “repeatedly argued that, even if its employees were involved in torture and other abuse, the company is shielded from liability.” As CCR added, however, Judge Brinkema’s 54-page ruling “definitively rejected that position, as well as attempts by certain Bush-era officials to water down the prohibition against torture, and allowed the lawsuit to proceed against CACI.”

As CCR also explained, “While a number of low-level military officers were court-martialed over their roles in the abuse, CACI has gone unpunished — and continues to reap millions of dollars in government contracts — even though US military investigators long ago concluded that CACI interrogators conspired with the US soldiers who were later court martialed to ‘soften up’ detainees for interrogations, according to statements by co-conspirators.”

As CCR also noted, a US Army General, Antonio M. Taguba, in a ground-breaking report in 2004, referred to the treatment as “sadistic, blatant, and wanton” criminal abuses.

CCR also noted that Judge Brinkema’s opinion included a detailed account of what happened to Suhail Al Shimari, Asa’ad Al-Zuba’e, and Salah Al-Ejaili, which included:

[being] subjected to repeated stress positions, including at least one that made [Plaintiff Al-Ejaili] vomit black liquid; sexually-related humiliation; disruptive sleeping patterns and long periods of being kept naked or without food or water; and multiple instances of being threatened with dogs … being doused with hot and cold liquids … sexual assault and threats of rape; being left in a cold shower until [Plaintiff Zuba’e] was unable to stand; dog bites and repeated beatings, including with sticks and to the genitals … at least one [stress position] that lasted an entire day and resulted in [Zuba’e] urinating and defecating on himself; and threats that his family would be brought to Abu Ghraib … systematic beatings … with a baton and rifle, [being] hit against the wall; [being] forced to kneel on sharp stones, causing lasting damage to [Plaintiff Al Shimari’s] legs; … being kept in a dark cell and with loud music nearby; threats of being shot … electric shocks; being dragged around the prison by a rope tied around [Al Shimari’s] neck; and having fingers inserted into [Al Shimari’s] rectum.

Given this list, it is unsurprising that the Court concluded, “it is clear that the abuse suffered by plaintiffs was intended to inflict severe pain or suffering and rises to the level of torture.”

However, as I noted just two days ago, to date it has been impossible to get a US court to confirm that torture took place in any of the detention sites established in the wake of the 9/11 attacks — in large part, because President Obama blocked efforts to do so via the “state secrets doctrine” (see the Jeppesen case here), and last August, when James Mitchell and Bruce Jessen, former military psychologists who had developed the torture program for the CIA, had been told that several survivors of the rendition and torture program, and the family of another man, Gul Rahman, who had died in Afghanistan, were to be allowed to challenge them in a court, they settled out of court instead — for a significant, but undisclosed amount.

I discussed these previous cases in an article looking at the potential for the International Criminal Court (the ICC) to launch an investigation into war crimes in Afghanistan, including those committed by US forces, and also “crimes committed on the territory of other countries that are a member of the ICC where the crimes have a nexus to those committed in Afghanistan, such as Romania, Poland and Lithuania — all known to have hosted CIA black sites.”

It is still to be fervently hoped that the ICC investigation goes ahead — because, as the academic Mark Kersten noted, to do so would be “brave and courageous — exactly the kind of thing the ICC was supposed to investigate” — but in the meantime this ruling by Judge Brinkema means that she will have a place in the history books, not just for this ruling, but also, I hope, because it leads to some genuine accountability on US soil for what took place in America’s torture prisons around the world.

As CCR’s Legal Director Baher Azmy said after the ruling, “The decision is a historic judicial rebuke to the Bush administration’s torture paradigm, which had sought to evade the well-established prohibitions against torture, and is one of the clearest statements in the post-9/11 era that victims of torture and grave human rights abuses can access the courts for a remedy.” He added, “The court confirmed what was plain to the eye: that the horrific treatment our clients endured at Abu Ghraib was unlawful and that, in a country operating under the rule of law, those responsible can be held accountable.”

Note: For more information, visit CCR’s case page.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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