Despite promises that Americans who committed acts of torture, murder and other war crimes in Iraq would be brought to justice, the U.S. “justice system” has failed utterly in doing so. Secretary of Defense Donald Rumsfeld, testifying before the Senate Armed Services Committee in May 2004 about torture at the U.S. military prison near Abu Ghraib, Iraq, even vowed that “It is my obligation to evaluate what happened, to make sure those who have committed wrongdoing are brought to justice, and to make changes as needed to see that it doesn't happen again.” (emphasis added.)

As two cases decided last week demonstrate, that promise was empty at best.

The first case arose directly from the Abu Ghraib torture chambers, where detainees alleged that they were subjected to a variety of torture techniques, including “electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.” In 2008, some of the surviving detainees filed suit against CACI International, Inc., whose employees were involved in the torture, under the Alien Tort Statute (ATS), a 224-year-old law that grants jurisdiction to federal courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

U.S. District Judge Gerald Bruce Lee dismissed their claims, ruling that CACI cannot be sued for its role in torturing them because corporations are immune from civil claims for wrongs committed outside the U.S. Basing his decision on the 2011 Supreme Court case of Kiobel v. Royal Dutch Petroleum, in which the Court held that the ATS does not apply to claims by foreign nationals against a corporation for conduct that occurred entirely outside the U.S., Lee held that “Here, as in Kiobel, Plaintiffs are barred from asserting ATS jurisdiction because the alleged conduct giving rise to their claims occurred exclusively on foreign soil.” 
 

Attorneys at the Center for Constitutional Rights (CCR) who represented the detainees criticized what they called Lee's “narrow and technical” reading of Kiobel, arguing that he ignored an exception for cases that “touch and concern” the U.S. “with sufficient force.” Noting that Judge Lee’s ruling came down on the International Day in Support of Torture Victims, Baher Azmy, CCR’s legal director, said that the “ruling effectively created lawless spaces where even U.S.-based entities can commit torture and war crimes with impunity.” He promised an appeal.
 

Judge Lee’s decision uncovers a “blind spot” in U.S. law, contends Jonathan Turley, a George Washington University law professor who has argued national security cases. “We talk a good game about our government being subject to the rule of law, but we have created this expanding exception where the government and its contractors can shield the worst possible abuses. The government and its contractors are virtually without a check or balance in our system.”

The other case also arose in Iraq, as the military’s highest court last week overturned the murder conviction of Sgt. Lawrence Hutchins III, who was found guilty by a military jury of leading an eight-man squad that kidnapped a retired Iraqi policeman from his home in April 2006, marched him to a ditch and shot him to death in the village of Hamdania, after which they planted “evidence,” including an AK-47, to make it seem that he was an anti-American fighter. Hutchins has already served about half of his 11-year sentence; none of the other seven squaddies served more than 18 months.

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In overturning the conviction, the Court of Appeals for the Armed Forces ruled that the Navy violated Hutchins’ Fifth Amendment rights when it interrogated him about the incident, isolated him for seven days in a trailer with no access to a lawyer or phone, and then extracted a confession. Since the confession was obtained illegally, and the Navy’s case against Hutchins rested heavily on his confession, the Court had little choice but to overturn the conviction.

Former Navy officer David Glazier, now a law professor at Loyola Law School in Los Angeles, said Wednesday’s decision highlights the military’s poor record in prosecuting war crimes. “For these very serious allegations of conduct that one would think of as war crimes, the military justice system has not performed very well in the past couple decades,” said Glazier.

“Here this guy’s conviction is overturned on the basis that he was mistreated by the government during his initial apprehension, and yet he’s already served five years in prison. If the conviction was unjust in the first place, it’s kind of appalling it’s taken the military justice system five years to resolve it.”

It is equally appalling that Navy investigators made such a rookie mistake, which necessarily raises the question of just how sincere the military’s commitment to prosecuting its own war criminals really is. The Navy now has the option of appealing the case to the Supreme Court or retrying Hutchins without using his confession.

Hutchins’ lawyer, Babu Kaza, said he expects him to now be released in days. “Sgt. Hutchins and his family have suffered enough with this case, and it’s time for this to be over,” said Kaza. “Enough is enough.”

No comment was available from the family of the man Hutchins and his squad murdered.

-Matt Bewig

To Learn More:

Lawrence Hutchins III Murder Conviction Overturned By Military’s Highest Court (by Julie Watson, Huffington Post)

Abu Ghraib Case against CACI Dismissed (by Marjorie Censer, Washington Post)

Marine's Iraq Murder conviction Tossed (by Gretel C. Kovach, San Diego Union-Tribune)

Defense Contractor Ducks Abu Ghraib Liability (by Adam Klasfeld, Courthouse News Service)

Al Shimari, et al. v. CACI International, Inc. (Court Order) (pdf)