Employees of two high-profile defense contractors are accused of involvement or knowledge of close to one-third of the torture and abuse incidents cited in a recent Army investigation of Abu Ghraib prison in Iraq.
In late August, following release of the report, the U.S. Defense Department officials turned over the names of six CACI International Inc. and Titan Corporation employees to the Justice Department for possible prosecution. But efforts to hold private contract employees truly accountable for any role they may have had in any wrongdoing may fall short due to untested laws and a U.S. administration that critics say has repeatedly redefined torture in its "war on terror" and in the war in Iraq.
The 176-page Army report, produced under the direction of Maj. Gen. George R. Fay and Lt. Gen. Anthony R. Jones, graphically details 44 incidents of abuse taking place at Abu Ghraib involving Army intelligence, military police and contractors. It confirms prior findings of torture including head blows and other physical assault, sodomy, rape, stripping prisoners of their clothing, forcing detainees to masturbate and perform sex acts, the use of unmuzzled dogs and other atrocities and abusive practices.
Of the 44 documented incidents, from July 2003 to February 2004, interrogators employed by CACI International, Inc., of Arlington, Virginia, and translators working for Titan Corporation of San Diego, California, are accused of being connected to 16.
Army investigators found evidence to back up allegations that the contract employees violently assaulted prisoners, demanded that prisoners be forced into unauthorized stress positions and threatened prisoners with dogs. It also documents allegations of rape made by one witness who told investigators the perpetrator could be a civilian and possibly a translator who was wearing a military uniform.
CACI and Titan have regularly denied such allegations against their employees and a CACI internal investigation this summer found no wrongdoing on the part of its employees, said a source familiar with the review. While the companies willingly intend to aid government investigations of Abu Ghraib, the spokesmen also said the recent Army findings are far less damning than what was originally claimed when the prison scandal originally surfaced in the spring.
In a company statement, CACI CEO Jack London said "Nothing in the Fay report can be construed as CACI employees directing, participating in or even observing anything close to what we have all seen in the dozens of horrendous photos."
London stopped short of an unequivocal defense of his employees, adding that the company is "disappointed and disheartened by the news that any of our employees or former employees are alleged to have engaged in any improper or inappropriate behavior."
Nonetheless, Army investigators assert that 35 percent of the interrogators provided on contract by CACI "lacked formal military training as interrogators" for what the Pentagon considers a critical military function that should only be outsourced in extreme and pressing situations. The report also claims that the Army failed to properly investigate the backgrounds of many of the contract employees.
The day after the Fay/Jones report was made public August 24, Defense Department officials turned over the names of four CACI and Titan employees accused of active participation in the abuse. Also turned over for possible prosecution were two more employees accused of failing to report torture and abuse that they witnessed.
From a variety of perspectives, "the use of contract interrogators and linguists at Abu Ghraib was problematic," the report finds. Leadership at the prison was "unprepared for the arrival of contract interrogators and had no training to fall back on in the management, control, and discipline of these personnel."
It also says, "Several people indicated in their statements that contractor personnel were 'supervising' government personnel or vice versa. [One] Sergeant indicated that CACI employees were in positions of authority, and appeared to be supervising government personnel.
The report concludes. "It would appear that no effort to familiarize the ultimate user of the contracted services of the contract's terms and procedures was ever made."
One CACI contractor, accused in the report of dragging a handcuffed prisoner and drinking alcohol at the prison, is cited as being belligerent to military command. In one instance, he is said to have protested: "I have been doing my job for 20 years and do not need a 20-year-old to tell me how to do my job."
Justice Department prosecutors say they are still determining how to proceed on the cases. But since both Justice and Defense have rewritten the definition of torture several times and because the Pentagon has yet to investigate the roles played by the two companies, actual prosecutions are uncertain.
Meanwhile, private lawyers are waging two separate court battles claiming that the torture is far more brutal and widespread than what Pentagon investigators publicly acknowledge and that the companies involved should share the blame for the abusive treatment of detainees.
One law suit, filed in Federal District Court in Washington, D.C., was originally hatched by Australian lawyer Michael Hourigan after traveling to Iraq last spring to visit with former detainees, according to Atlanta attorney Roderick Edmond who is working with Hourigan. Plaintiffs of the suit include four former prisoners and an Iraqi widow who says her husband died at the Abu Ghraib. Titan and CACI are named as defendants.
Based on the Alien Tort Claims Act, which allows foreigners to sue U.S. corporations for violations of international law, the suit aims to determine what responsibility, if any, that the contractors may have had in the events at Abu Ghraib, Edmond said.
"People really were tortured and real people really did die," he said. "Somehow these corporations need to be held accountable if they were derelict in their responsibilities of training and supervision and their employees were involved."
The Fay/Jones report makes no mention of contractor personnel being involved in the single incident of death that it investigated.
Both companies reject and deny the allegations in the law suit. A CACI statement denounces the suit as "malicious and farcical recitation of false statements and intentional distortions."
A second suit, sponsored by the Center for Constitutional rights is also rejected by the companies. Filed in Federal Court in San Diego, California, it alleges an even wider pattern of torture and is brought under the Racketeer Influenced and Corrupt Organizations Act, a 1970 law often used by prosecutors to go after organized crime that imposes both criminal and civil liability. The suit, alleges violations of the Geneva Conventions, 8th, 5th, and 14th Amendments to the U.S. Constitution as well as other U.S. and international laws.
Meanwhile, Titan employees will be considered for prosecution by the Justice Department under the still untested Military Extraterritorial Jurisdiction Act. Passed in November 2000, the law permits prosecution in U.S. federal courts of Defense Department contractors who commit crimes while working with the military outside the United States.
But the law applies only to crimes carrying a minimum one-year sentence and that may not include incidents of simple assault said Michael Nardotti Jr., a law partner at Patton Boggs in Washington in a May 11 interview with American Lawyer.
"Suppose the behavior involves humiliating the detainee, or stripping him naked," said Nardotti, who served as judge advocate general of the Army from 1993 to 1997. "What crime would that constitute? You'd have to look at the whole list of federal offenses and find one that is punishable by more than one year."
Alex Ward, a legal fellow for Amnesty International, agrees. "It's a very foggy area," he says, "but assuming that, at the very least, the worst of what the contractors did is true, I imagine that would be punishable."
Interrogators employed by CACI pose a more complex problem for prosecutors. The company performed its interrogation work for the Army under a contract originally intended to provide information technology through the Interior Department. Because CACI was technically operating through Interior - and not the Defense Department - wrongdoing by CACI employees may be outside the jurisdiction of the untested Military Extraterritorial Jurisdiction Act.
Faced with that dilemma, a Justice Department task force under the U.S. Attorney's office for the Eastern District of Virginia is considering the U.S. criminal code covering torture for possible prosecution, says spokesman, Frank Schultz.
That statute, Title 18, amendment 2340a, defines torture as inflicting "severe physical or mental pain or suffering" and requires that "Whoever outside the United States commits or attempts to commit torture" may be fined or imprisoned for not more than 20 years.
"That's part of what is being looked at right now," Shultz said. "It's the prosecutorial process."
That process may not go very far, says Scott Horton, an attorney who is president of the New York based International League of Human Rights. The group joined other human rights organizations in a May 7 letter to President Bush that claims that the patterns of torture and abuse at Abu Ghraib are widespread at other detention facilities in Iraq, Afghanistan and Guantanamo Bay, Cuba.
The letter requests that the president rein in those responsible and assure that the treatment of detainees is consistent with international humanitarian law."We are talking about an administration and attorney general who have issued opinions saying that torture isn't torture, so it's difficult to believe they seriously intend to prosecute anyone," Horton says. "They have established a policy at the highest level to create an atmosphere of ambiguity."
In August, 2002, Jay Bybee, head of the Justice Department's office legal counsel wrote White House counsel Alberto R Gonzales stating that "Certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [a legal] proscription against torture."
Elisa Massimino, director of Human Rights First in the Washington, D.C., office, says these and other memos from the Justice Department, the White House and the Pentagon seek to bend the rules on torture.
"The laws are clear," she says. "The only thing that became hazy is the administration."
Independent investigation demanded
On September 8, 2004, eight retired generals and admirals joined Human Rights First in a call for an independent investigation of Abu Ghraib and other detention centers, saying that previous probes fall short in providing a comprehensive assessment of abuse or meaningful recommendations to address them.
"The use of contractors for what is a military function is a huge issue," said retired Navy admiral, John Hutson, who served as the Navy's judge advocate general from 1997 to 2000 and joined in the call for an independent investigation. "It's a problem when contractors are inserted in the chain of command."
The Fay report also points an accusing finger up the chain of command, claiming that senior officers in Iraq neglected to provide needed oversight or and lay out "clear, consistent guidance" for the treatment of detainees.
Another investigation of Abu Ghraib led by former defense secretary James R. Schlesinger released August 24 aimed even higher. It blames senior civilian and military leaders at the Pentagon for fostering confused guidance, poor planning and plodding response after problems at Abu Ghraib became known.
While none of the dozen reports dealing with the treatment of detainees has found direct responsibility by CACI or Titan management for the events at Abu Ghraib, one investigation spearheaded by the General Services Administration (GSA) did review the CACI's interrogation task orders after the prison abuse began making headlines.
Because the Army awarded task orders for interrogation services to CACI under an Interior contract for technology services, GSA determined that interrogation was clearly out of scope of the agreement's intent and could be possible grounds for debarring or suspending CACI from future government work.
The GSA review also discovered that a CACI employee, Thomas Howard, took part in writing for the Army the very guidelines for the work (called in contract jargon a "statement of work" ) to be performed by CACI.
After the review, GSA suspension and debarment official Joseph Neurauter said, in a July 7 letter to the company, that he would not take formal action against CACI. Still, Neurauter expressed concern that "CACI's possible role in preparing statements of work continues to be an open issue and potential conflict of interest." Neurauter requested further response from the company.
Prior to the award of the interrogation task orders, CACI employed no interrogators and had to recruit them to fill the required positions, said J. William Koegel, CACI legal counsel."The fact that contract documents specified one set of requirements rather than another, therefore, did not provide any advantage to CACI," he said.
Following further private discussions with GSA, CACI vowed to comply with federal acquisition regulations in the future. The Army then discontinued funneling the contract through Interior and wrote a new agreement with CACI to continue the interrogation work.
"I do not feel that, at this time, it is necessary for me to take any formal action to protect the interests of the federal government," Neurauter concluded. The new contract, announced by CACI on August 10, is for a period of four months, worth $15.3 million, and has two optional extensions worth up to $3.8 million each, for a total value of $23 million.
Meanwhile, the Fay/Jones report found that it remains unclear "who, if anyone, in Army contracting or legal channels approved the use" of the original Interior contract for interrogation services.
The civil suits against CACI and Titan may possibly shed more light in that regard. Among other things, the Center for Constitutional Rights lawsuit aims to prove that CACI and Titan knowingly collaborated with the Defense Department in the prison abuse. Both companies assert the allegations are unfounded and lack any credible evidence.
Detroit attorney, Shereef Akeel, who is working on the lawsuit, says that he discovered that abuse and torture are widespread at the 23 U.S. detention facilities in Iraq and that contract employees with Titan may have been involved in some instances. During a recent fact-finding trip, he visited with detainees, former prisoners and families who said they lost loved ones at the centers.
"It is horrific and devastating," Akeel says, adding that the abuse begins when the military raids homes at night in search of suspected insurgents. "Families would be robbed. They are stripped of their dignity and property. The normal routine is a raid with translators carrying guns asking where the father is and where the gold is."
Once at the detention facilities, Akeel says that detainees are subjected to brutality, rape and other forms of abuse.
"This is torture for profit," he claims. "The government is there is to promote 'democracy' while companies have two competing masters - shareholders and the government - and they are there for profit."
Contact the author, David Phinney, at firstname.lastname@example.org.