Tornado Alley (PROG)

[fuagf]

"This kind of crap would make a third world country blush". .. inky99 [Moderator] .. said .. further excerpt from Scott Horton's article ..

What’s the matter with Silberman’s ruling? Start with the core of his conclusion, that the contractors are “integrated into combatant activities over which the military retains command authority.” In fact, part of the problem with the contractors in Iraq is that they are not integrated into the authority of the Baghdad command. As I noted in Private Security Contractors at War, based on interviews with numerous figures in the Baghdad command, one of the major complaints raised by the career military is that they have no command authority over the security contractors. The report documents numerous cases in which contractors acted with conscious disregard for command authority’s orders, frequently with tragic results. For contractors to be subject to command authority, they would have to be subject to military discipline under the Uniform Code of Military Justice and through other measures. But the Department of the Army’s own probe of the facts which underlie the case in which Judge Silberman ruled showed just the opposite to be true.

Army investigators concluded that security contractors were responsible for the most serious abuses that occurred in the Abu Ghraib prison. They also accused the contractors of undermining military discipline and morale with their bad conduct and utter lack of accountability. They recommended a civilian criminal probe and prosecutions. The Bush Administration, seeking to minimize its embarrassment from the prisoner abuse scandal, swept the entire matter under the carpet.

Silberman’s opinion also reflects an amazing ignorance of or indifference to the basic concepts of the law of armed conflict. That law imposes a rule of absolute accountability on any persons fielded in a conflict, including contractors. It does not permit impunity or immunity. Not every aspect of the law of armed conflict is subject to private enforcement in the courts. But the prohibition on torture and cruel, inhuman, and degrading conduct is. The United States agreed in ratifying the Convention Against Torture that it would provide individuals who were tortured with legal recourse. The Alien Tort Statute, which formed the basis for the suit, has historically been used in federal courts to give foreigners compensation for claims of torture. But Judge Silberman decided to grant the contractors immunity from such suits.

Judge Merrick B. Garland, in dissent, responds to Silberman’s rationalization of his decision to immunize the contractors from torture claims:

The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison. At the current stage of the litigation, we must accept these allegations as true. The plaintiffs do not contend that the United States military authorized or instructed the contractors to engage in such acts. No Executive Branch official has defended this conduct or suggested that it was employed to further any military purpose. To the contrary, both the current and previous Administrations have repeatedly and vociferously condemned the conduct at Abu Ghraib as contrary to the values and interests of the United States. So, too, has the Congress.

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors — who were neither soldiers nor civilian government employees. Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government. Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability.

Judge Garland is correct about all of this. The Silberman decision rests on no law and a critical misrepresentation
of fact. So what motivated Silberman to render this decision, and Bush-appointee Brett Kavanaugh to sign on?

Silberman, who was once described to me by Ford Administration Deputy Attorney General Harold R. Tyler as the
“least judicious and most political figure ever to sit on the federal bench,” has a long track record of political dirty tricks.
http://harpers.org/archive/2009/09/hbc-90005706

Reminds me of this old one, which all must have seen, in which Scalia's suggestion and
argument that torture is not punishment must leave any reasonable person incredulous.
http://thinkprogress.org/2008/04/28/scalia-60-minutes/

Surely.

Thanks to Jeremy Scahill and Scott Horton.