"Close Friend" Throws Out Suit

http://www.truthout.org/091509S

Cheney and Rumsfeld's "Close Friend" Throws Out Suit Against Alleged Abu Ghraib Torturers
Tuesday 15 September 2009
Jeremy Scahill Rebel Reports

Should Judge Laurence Silberman have recused himself from a case involving alleged torture for which his buddies were ultimately responsible?

On September 11, the US appeals court for the District of Columbia announced in a 2-1 decision that it was throwing out a lawsuit against CACI International and L-3 Communications Titan unit, which are being sued by Iraqi civilians for their alleged role in the torture and abuse at the Abu Ghraib prison. The companies provided interrogators at the prison at the height of the abuses there. The suit alleges that employees of the companies conspired with U.S. Army reservist Charles Graner, who was convicted of prisoner abuse on January 14, 2005 and is currently serving 10 years at Fort Leavenworth, and others to torture prisoners at Abu Ghraib. Several of the plaintiffs are Iraqis whose torture was depicted in graphic photos revealed over the past several years.

The judge who wrote the majority opinion, Laurence H. Silberman, said: "During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted."

The decision was swiftly celebrated by the private security industry. "The court's decision today is an important step toward resolving all legal matters regarding the company's mission and duties in Iraq," Jody Brown, executive vice president for public relations at CACI, said in a statement. "We have said from day one that these lawsuits are completely without merit and designed to pursue a political agenda."

"This is big, and this is the kind of good news the contracting community needs," wrote one security contractor on his blog. "Precedents like this are what we need for further protection in the future for similar cases."

Scott Horton, the great military and constitutional law expert wrote at Harper's that Silberman's opinion "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.

In a dissenting opinion, Judge Merrick B. Garland wrote:

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 ... 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 ... 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.

"Republican legal architects talk about a culture of accountability, but what they are introducing is actually a culture in which corporate surrogates torture, rape, and abuse with no consequences whatsoever," writes Horton.

Beyond the legal issues here, which Horton deftly tackles, there is another issue: Judge Laurence Silberman himself. Silberman was appointed to the bench by President Reagan in 1985, but he had already made a name for himself in right wing political circles. Several journalists have dug deep into Silberman's alleged involvement with the arms-for-hostages deal, his exoneration of Iran-Contra figures Oliver North and John Poindexter and Silberman's role in promoting the career of Supreme Court Justice Clarence Thomas. For a good summary of Silberman's career see this excellent article by Michele Goldberg on Salon.com. Goldberg writes:

[Silberman] has been near the febrile center of the largest political scandals of the past two decades, from the rumored "October surprise" of 1980 and the Iran-contra trials to the character assassination of Anita Hill and the impeachment of President Clinton. Whenever right-wing conspiracies swing into action, Silberman is there.

A veteran of the Richard Nixon and Ronald Reagan administrations who is close to Vice President Dick Cheney, Silberman has a reputation as a fierce ideologue who doesn't let his judicial responsibilities get in the way of his Republican activism.

Judge Silberman also counts among his "close friends" former vice president Dick Cheney and former defense secretary Donald Rumsfeld - going back to their time in the Ford Administration. Rumsfeld was ultimately the official responsible for the abuses at Abu Ghraib at the time of the alleged torture of the plaintiffs in this case and Cheney was a major architect of the torture program. One of Bush/Cheney's key "torture lawyers," John Yoo, clerked under Silberman. Silberman also was chosen by President George W Bush to co-chair the Iraq Intelligence Commission. The 600+ page report Silberman's commission produced placed the blame for "intelligence failures" squarely on intelligence analysts and exonerated officials, like Cheney, who worked tirelessly to politicize intelligence to fit the White House's political agenda and its drive to invade Iraq. In June 2008, Bush awarded Silberman the Presidential Medal of Freedom. In 2004, former Nixon staffer Kevin Phillips said, "In the past, Silberman has been more involved with coverups in the Middle East than with any attempts to unravel them."

Should Silberman have recused himself from this case?

In 1994, the Supreme Court found that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994)] There are also these decisions: Courts have found that Section 455(a) of the Judicial Code, 28 U.S.C. §455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." [Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989)]. In Pfizer Inc. v. Lord, the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." [456 F.2d 532 (8th Cir. 1972)]

Do Silberman's relationships to Cheney and Rumsfeld whose policies ultimately led to the torture and abuse at Abu Ghraib constitute "reasonable questions" about his "impartiality?"

Consortiumnews Spring Fundraising Drive 2008

Editor's Note: As we start our spring fundraising drive - so we can continue to produce the independent journalism that you see at Consortiumnews.com - we thought you'd be interested in some of the reasons we do what we do.
By Robert Parry

One of our top goals at Consortiumnews.com - and what I've tried to do throughout my three-decade career in national journalism - is to give readers important information that they haven't encountered elsewhere, what you might call telling truth early.

There is always a danger in doing this, because many people tend to reject what they haven't heard before. Sometimes, the information is unwelcome because it goes against a preconception or it disrupts a favored point of view. It might cause discomfort or anger.

That was the case in the mid-1980s when my work at the Associated Press helped expose Oliver North's secret operations supplying the Nicaraguan contras as well as the even darker secret - that many contras were collaborating with cocaine traffickers and that senior officials in the Reagan administration covered up this reality for political reasons.

That truth was so objectionable that many Americans didn't want to believe it - and many powerful people in Washington were determined to hide it. Because of the harsh denials and the determined counterattacks, the full story of the contras and cocaine is still only hazily known to this day.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.

The Beltway contempt for the rule of law

http://www.salon.com/opinion/greenwald/2007/10/14/rule_of_law/index.html

The Beltway Establishment's contempt for the rule of law
The imminent Telecom Amnesty law is but the latest example proving that Washington no longer believes it is subject to the "rule of law"
Glenn Greenwald

Oct. 14, 2007 The Washington Post's Editorial Page, in the establishment-defending form of Fred Hiatt, today became but the latest Beltway appendage to urge the enactment of a special law providing amnesty to our nation's poor, put-upon, lawbreaking telecoms:

There is one major area of disagreement between the administration and House Democrats where we think the administration has the better of the argument: the question of whether telecommunications companies that provided information to the government without court orders should be given retroactive immunity from being sued. House Democrats are understandably reluctant to grant that wholesale protection without understanding exactly what conduct they are shielding, and the administration has balked at providing such information. But the telecommunications providers seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.

Let's leave to the side Hiatt's inane claim that these telecoms, in actively enabling the Bush administration to spy on their customers in violation of the law, were motivated by the pure and upstanding desire to be "patriotic corporate citizens" -- rather than, say, the desire to obtain extremely lucrative government contracts which would likely have been unavailable had they refused to break the law. Leave to the side the fact that actual "patriotism" would have led these telecoms to adhere to the surveillance and privacy laws enacted by the American people through their Congress in accordance with the U.S. Constitution -- as a handful of actual patriotic telecoms apparently did -- rather than submit to the illegal demands of the President.

Further leave to the side that these telecoms did not merely allow warrantless surveillance on their customers in the hectic and "confused" days or weeks after 9/11, but for years. Further leave to the side the fact that, as Hiatt's own newspaper just reported yesterday, the desire for warrantless eavesdropping capabilities seemed to be on the Bush agenda well before 9/11.

And finally ignore the fact that Hiatt is defending the telecom's good faith even though, as he implicitly acknowledges, he has no idea what they actually did, because it is all still Top Secret and we are barred from knowing what happened here. For all those reasons, Hiatt's claim on behalf of the telecoms that they broke the law for "patriotic" reasons is so frivolous as to insult the intelligence of his readers, but -- more importantly -- it is also completely irrelevant.

There is no such thing as a "patriotism exception" to the laws that we pass. It is not a defense to illegal behavior to say that one violated the law for "patriotic" reasons. That was Oliver North's defense to Congress when he proudly admitted breaking multiple federal laws. And it is the same "defense" that people like North have been making to justify Bush's violations of our surveillance laws -- what we call "felonies" -- in spying on Americans without warrants.

By definition, the "rule of law" does not exist if government officials and entities with influential Beltway lobbyists can run around breaking the law whenever they decide that there are good reasons for doing so. The bedrock principle of the "rule of law" is that the law applies equally to everyone, even to those who occupy Important Positions in Fred Hiatt's social, economic and political circles and who therefore act with the most elevated of motives.

In a 1998 essay in Foreign Affairs entitled "The Rule of Law Revival," Thomas Carothers of the Carnegie Endowment for International Peace wrote optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. Here is how he defined the basic principles of "the rule of law":

LEGAL BEDROCK

THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding.

What is happening now in Washington is -- in every respect -- the exact opposite of this. Already, it was revealed that our highest government officials, including the President, broke the law deliberately and for years by spying on Americans without the warrants required by the laws we enacted, and all of official Washington immediately agreed that nothing should happen as a result. And nothing did happen.

And now, some of our country's richest, largest, most powerful and most well-connected corporations were caught breaking laws that have been in place for decades, such as Section 222 of the Communications Act of 1934, which provides that "[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of . . . customers." 18 U.S.C. 2511 makes warrantless eavesdropping a felony; 18 U.S.C. 2702 requires that any "entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication" without a court order; and 18 U.S.C. 2520 provides for civil damages for any violations.

Here, the Government will not prosecute telecoms for breaking the law, because the government itself conspired in that lawbreaking. Thus, public interest groups and private citizens, including the telecoms' own customers, are attempting to hold them accountable for their lawbreaking by suing them in courts of law.

In response, these corporations are using their vast resources to give money to key lawmakers and pay huge lobbying fees to politically well-connected former government officials to pressure the Congress to write a new law that has no purpose other than to declare that they are immune from accountability for their lawbreaking. They're conniving, literally, to be specially exempted from the rule of law.

And our opinion-making elite is eagerly defending this -- insisting that while the poor irrelevant souls who buy and sell drugs near the corners of their offices are real criminals and those people belong in prison, our nation's telecoms and other high officials, when they get caught breaking the law, should have special laws written decreeing that they are immune from all consequences.

This has become the norm for the Beltway. It is exactly what happened when poor, persecuted Lewis Libby was so unfairly subjected to a mean criminal trial and the possibility of prison -- just because he "technically" committed some felonies. Libby was one of them, not the kind of person who belongs in prison. As Hiatt wrote, in defending Bush's extraordinary commutation of Libby's sentence on the ground that 30 months was just too harsh (while generously allowing that Libby should spend a little time in prison): given "Mr. Libby's long and distinguished record of public service, [] we sympathize with Mr. Bush's conclusion 'that the prison sentence given to Mr. Libby is excessive.'"

And thus, just as they did for George Bush's warrantless eavesdropping crimes and Lewis Libby's obstruction of justice and perjury felonies, the Beltway establishment is now banding together to demand that the telecoms be bequeathed with the legal right to break the law. In his Foreign Affairs essay, Carothers warned of the primary obstacle to the installation of the "rule of law" in developing third-world countries:

The primary obstacles to such reform are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure.

Is it possible to find a more accurate description than this of what has been taking place over the last six years in Washington, as the rule of law for our political elites has completely eroded?

If it is actually true that the telecoms did nothing wrong -- if their armies of internal and outside lawyers were actually correct that they had such a strong basis for doing what they did -- then they will not be found liable. They will only be liable if -- despite the best teams of lawyers that money can buy (just like Lewis Libby had) -- they are found by a court to have broken the law.

And "good faith" violations are already exempted from the statute (see 2520(d)), a defense they can raise and prove in a court of law if -- as Hiatt and his friends claim -- it is actually valid.

That is how a country that lives under the "rule of law" functions -- whether someone is found to have acted illegally is determined by a court of law, not neatly resolved after the fact with special amnesty laws passed by Congress that they buy. Here is what Carothers identified as the most "crucial" step for third-world countries to take in order to develop a healthy "rule-of-law" culture:

Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.

The corruption and sleaze here is so transparent and extreme. We're just sitting by watching as telecoms right in front of our faces purchase from government officials the right to be exempt from lawsuits currently pending in our court system. Government officials, more or less on a bipartisan basis, are about to intervene in these lawsuits and prevent them from proceeding to a determination of whether telcoms violated numerous, long-standing laws. And Fred Hiatt and David Ignatius and Joe Klein and virtually all Beltway "journalistic" opinion-makers think that is the right thing to do, just as they insisted that the President and his aides should never be subjected to consequences for their lawbreaking either.

By definition, our Beltway establishment does not believe in the rule of law -- at least not for them. They are creating a completely segregated, two-track system where high Beltway officials and their corporate enablers arrogate unto themselves the power to decide when they can break the law. They are thus literally exempt from our laws, even our criminal laws, while increasingly harsh, merciless, and inflexible punishments are doled out for the poorest and least connected criminals -- who receive no consideration of any kind, let alone presidential commutations or special laws written for them by Congress retroactively rendering legal their patently criminal behavior.

The Telecom Immunity law that Congress seems well on its way to enacting is one of the most conclusive pieces of evidence yet not only that our Royal Beltway Court is corrupt and decayed at its core. It also proves that they no longer care who knows it.

-- Glenn Greenwald