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Monday,
May 21, 2012. Chaos and violence continue, at least 73 people died in
Iraq last week from violence (Sunday the 13th through Saturday the
19th), the political crisis continues in Iraq, there's a ruling out of
England that states some notes on a phone call between Bully Boy Bush
and Tony Blair right before the start of the Iraq War may be released,
veterans protest in Chicago, victims of abuse at Abu Ghraib prison
attempt to be heard in the US courts, and more.
Heidi
Boghosian: Michael, we have a bit of good news. A federal appeals
court has revived two lawsuits by former Iraqi detainees claiming that
civilian interrogators and translators actually participated in their
torture at Abu Ghraib prison. You'll remember Titan Corporation which
is now called L-3 Services and Nakhla International were sued by the
Center for Constitutional Rights.
Michael
Smith: On behalf of a number of people who are tortured -- I think
seventy some. The case was thrown out but then revived. Appellate
court said we just need more information before we can make a decision
so let's not light the candles yet. But this was a good development
considering the Fourth Circuit isn't the most renowned in democratic
liberties circles.
Heidi
Boghosian: And I think the point that we should be happy for is that
it will allow the cases to go forward in the lower courts and allow the
stories from the detainees can be made public. Hopefully, some modicum
of justice will result.
Michael
Smith: I totally agree. Anytime you can shine the spotlight of public
opinion on these practices it's a win for the good guys.
Al-Quraishi
v. Nakhla was brought against L-3 Services Inc. (formerly Titan
Corporation) and CACI International Inc., the U.S. government
contractors at Abu Ghraib prison and other facilities in Iraq, as well
as former contractor Adel Nakhla. CACI International Inc. has since been
dismissed as a Defendant in the case. The complaint alleges that L-3
Services and Adel Nakhla, a former translator employed by L-3 Services,
directed and participated in torture and other illegal conduct at
prisons in Iraq, including Abu Ghraib prison in Iraq.
The
suit, brought under the Alien Tort Statute (ATS) and federal question
jurisdiction, charges Defendants with violations of U.S. and
international law including torture; cruel, inhuman, or degrading
treatment; war crimes; assault and battery; sexual assault and battery;
intentional infliction of emotional distress; negligent hiring and
supervision; and negligent infliction of emotional distress. Further,
attached to most of these charges are counts of civil conspiracy and
aiding and abetting. Through this action, Plaintiffs seek compensatory
and punitive damages.
Among the heinous
acts to which the 72 Plaintiffs were subjected at the hands of the
Defendants and certain government co-conspirators were: rape and threats
of rape and other forms of sexual assault; electric shocks; repeated
beatings, including beatings with chains, boots and other objects;
prolonged hanging from limbs; forced nudity; hooding; isolated
detention; being urinated on and otherwise humiliated; and being
prevented from praying and otherwise abiding by their religious
practices.
The named Plaintiff, Wissam
Abdullateef Sa'eed Al-Quraishi, a 37-year-old married father of three,
was hung on a pole for seven days at the infamous Abu Ghraib "hard site"
and subjected to beatings, forced nudity, electrical shocks,
humiliating treatment, mock executions and other forms of torture during
his incarceration at the prison.
Another
Plaintiff, Mr. Al-Janabi, was repeatedly and gravely tortured at Abu
Ghraib prison. Mr. Al-Janabi was subjected to various modes of torture,
including having his eyes almost clawed out, being stripped naked and
threatened with rape, being hung upside down until he lost
consciousness, and being deprived of sleep for extended periods of time.
Like the other Plaintiffs, Mr. Al-Janabi was released after enduring
over ten months of torture and other abuse without being charged with
any crime.
They also offer
audio of the arguments made before the Fourth Circuit (presided over by
Chief Judge William Traxler) en banc panel. We'll note three minutes
of what those insisting what happened can't be heard in a US court. The
DC based Steptoe & Johnson LLP's J. William Koegel Jr.,
representing CACI, spoke first so we'll note him.
J.
William Koegel Jr: I'm Bill Koegel, your Honor, and together with my
partner John O'Connor, represent CACI, the company retained by the
United States [Government] to assist the US military brigade in
conducting interrogations at Abu Ghraib prison in Iraq in the context of
the Iraq War. Today we ask the Court to reverse the unprecedented
decision of the district court allowing aliens detained as enemies by
the military on the battlefield in Iraq to pursue state law tort claims
relating to their interrogations at Abu Ghraib. There are three
separate but, in this context, inextricably intertwined legal doctrines
that support reversal. This Court has jurisdiction to reach each of
those issues and it should do so because delaying review until the entry
of a final judgment is going to imperil the significant federal
interests that are at stake in this action. I'm going to first address
jurisdiction with respect to immunity and pre-emption, then turn my
attention to jurisdiction with regards to the political question
doctrine because there's an independent basis for this court's
appellate jurisdiction in that respect. The immunity and the
pre-emption issues in this case are opposite sides of the same coin.
Both turn on a determination of whether the compelling federal interests
in the prosecution of war as reflected both in the Constitution and in
the Combatant Activities Exception to the federal court claims act set
forth a federal policy that precludes the application of the state tort
law employed by the plaintiffs here. If the Court considers the tests
for derivative absolute immunity as articulated in Mangold [v. Analytic Servs. Inc],
it's easy to see how the resolution of that issue necessarily
decides the battlefield pre-emption issue before the Court. We believe
that the Court in deciding the immunity issue must by definition
decide the battlefield pre-emption issue. Under the Mangold
test, the Court looks first to the function being performed by the
defendant and asks whether the function being performed by the
government if performed by a government official would leave to the
United States immune and, if so, whether the benefits of immunizing that
function outweigh the costs? This requires the Courts to examine the
federal interest in the function. Here the interrogation of detainees
in a war zone. We submit and we believe the United States [Government]
agrees that there is a compelling federal interest in conducting
interrogations on the battlefield free from the interference of state
tort law.
As disclosed before, I know Susan Burke of Burke PLCC. She's one of the attorneys representing the Iraqis. We'll note three minutes from her as well.
Susan
Burke: May it please the Court, my name is Susan Burke, representing
with my counsel the torture victims. I'd like to just add a few points
further to what my colleague has said about Judge Wilkinson's concern
about discovery. What you're dealing with here is the defendants claim
that they're entitled to go on a fishing expedition into government
files in order to find some sort of justification for their illegal
acts. As a practical litigation matter they already had to have in hand
whatever justification they had when they did it. So therefore we
would support, along with the United States, limitations on such kind of
a fishing expeditions.
Justice Dennis Shedd: But you assert, you assert there's a conspiracy with the military.
Susan Burke: Yes, we do, your Honor.
Justice
Dennis Shedd: So why would they -- wouldn't they want to have a lot of
discovery with a lot of military to prove you're wrong on that point?
Susan Burke: The reality is and if you look at the Saleh [v. Titan Corp] litigation
itself, 18 months of discovery with no harm to the federal interests.
The United States Government as well as the District Court obviously are
both well equipped to make sure that any of these interests that begin
to intrude on the national interests of security are brought up by
certification here.
Justice
Dennis Shedd: When you go back, when you go back for discovery and the
question is the scope of discovery and the question of we need to
consider in how much discovery will or won't be limited, we have to
think about the interests of the government in these combatant
activities for contractors, you will say that is an issue we have to
think about in the scope of discovery or you will say there is no such
interest?
Susan
Burke: Well we will say there is an interest of the federal government
in ensuring that discovery does not burden the federal interest and if
you look at what courts have done -- you can look, for example, at the
United States --
Justice
Dennis Shedd: And you would then acknowledge the combatant activities?
Whether you call that an interest or an immunity, you would acknowledge
if the Court wanted to focus on that and do something to protect that
interest you would say we do acknowledge that interest exists in the
dynamic?
Susan
Burke: Your honor the United States Government has identified a series
of interests all of which we acknowledge exists. The paramount
interest obviously is in preventing torture and that is why it is
critical to go back for discovery so that you don't inadvertently
immunize private contractors who broke the law and who --
Justice Dennis Shedd: But then --
Susan Burke: -- should not enjoy any immunity.
Justice
Dennis Shedd: What's the answer to my question? If in discovery the
question of do we need to protect the -- The government doesn't want to
call it combatant activities but it's akin to that, it's that. When
that issues is raised and the court asks you what must be done to
protect that interest if anything you will say there is an interest that
needs to be protected?
Susan Burke: Yes, your honor.
Justice Dennis Shedd: Okay.
Susan
Burke: We would agree there is an interest that needs to be protected
and the United States has several tools at its disposal -- state secrets
and other tools to make sure that interest it is protected.
Justice Dennis Shedd: But you -- but you would then acknowledge that there is a combatant activities interest?
Susan
Burke: No, your Honor. What we would acknowledge is there is a -- as
in all cases, there is a federal interest in making sure that classified
information, information harmful to national security does not
inadvertently come out through litigation.
There
were other attorneys arguing. Many of the justices ask questions and,
if you're able to stream and benefit from streaming (meaning no computer
issues and no hearing issues effect you), you should stream the whole
thing.
Moving to Iraq where the government spends freely on everything but basic services for the people. Jim Michaels (USA Today) reports,
"The United States has agreed to sell unarmed surveillance drones to
Iraq's navy as part of an effort to help protect that nation's oil
exports amid growing tensions in the Persian Gulf and to strengthen
U.S.-Iraqi ties." Just what Iraqis need to further endanger them. 'But
they're unarmed!' They're machines that give a false sense of
infallibility. Dropping back to Thursday's snapshot:
Today Mike Mount (CNN) reports
that the attack decisions were based on "video surveillance provided by
a U.S. drone" and "The airstrike also raises questions on how U.S.
partners use information given to them by U.S. drones." Remember that
as the government presses to distribute drones throughout the US. 35
people dead as a result of that 'intel.'
Drones
didn't protect the 35 or reveal that they weren't 'terrorists.' They
were killed. Based on 'intel' provided by a drone. Meanwhile RIA Novosti notes,
"Baghdad experts have discovered serious defects in the armored
vehicles Ukraine has manufactored for Iraq, Ukraine's Segondya daily
reported on Monday."
Trend AZ notes, "Six Iraqi policemen were killed on Monday in three separate gun and bomb attacks in the northern Iraqi city of Mosul." AP repeats
that as well and then tosses in their usual nonsense about violence
being down overall. Of course, it helps to pimp that lie when you (a)
use 2006 and 2007 as your benchmark (the most violent years of the Iraq
War) and (b) when you refuse to full report violence. For example, AFP notes
that in addition to the attacks on police, a bombing outside Mosul
claimed the life of Sheikh Rashid Zeidan, 3 Falluja roadside bombings
left 1 person dead and two more injured, a Dujail home invasion resulted
in the murder of "an old woman," a Ramadi car bombing left five people
injured, a Baghdad roadside bombing left three people injured and a
Baquba roadside bombing left three Iraqi soldiers injured.
And don't tell AP -- mainly because it's in no hurry to share the violence with anyone -- but Iraq Body Count
adds up 73 people killed in Iraq violence last week alone -- last week
alone. Sunday: 15, Monday: 11, Tuesday: 11, Wednesday: 14, Thursday:
5, Friday: 10 and Saturday: 7. Add it up (check my math) and the total
should be 73.
In other news, as the deadline
Moqtada al-Sadr announced last week for Nouri al-Maliki to implement
the Erbil Agreement and the 18-point plan proposed by Moqtada al-Sadr
gets closer, Nouri thought yesterday he could defuse the crisis by
calling for a Baghdad meet-up. Alsumaria reports
that today, while attending the International Conference on Human
Trafficking in Sulaymaniya, KRG Vice President Kosrat Rasul dismissed
Nouri's call for a meet-up with no preconditions. And Rasul notes that
the meetings that have been taking place, which State of Law dismisses
and attacks as a 'conspiracy,' are, in fact, part of the democratic
process. Saturday, Moqtada al-Sadr hosted another such meeting at
his Najaf home and attendees including Iraqiya, the Kurdistan Alliance
and the National Alliance. Ayad al-Tamimi (Al Mada) reports
that Moqtada has told his followers that this was a meeting to preserve
democracy and that State of Law elements decided not to attend while
Nouri was not invited. Outside of Iraqi President Jalal Talabani, the
Islamic Supreme Council of Iraq's Ammar al-Hakim remains the closest
thing to a public supporter Nouri has. He tells Al Mada that the
Sadrist bloc is part of the National Alliance but it cannot speak for
the alliance itself. He also tsk-tsks what he sees as "extortion
language" in some of the comments. The remarks about Moqtada not
speaking for the entire National Alliance was already made by Nouri's
State of Law. Al Rafidayn reports that here. But your underlings defending you in the press cares very little weight or influence. Ammar al-Hakim, like a prince, was born into his current role. He became leader of ISCI after his father died. Dar Addustour notes
that he just won re-election to his post of presidency. That outcome
was never in doubt. And that might be why al-Hakim can repeat the
comments urged on him without too much fear of being toppled. But
possibly al-Hakim should worry more about schisms and factions which are
growing in the party he presides over? Al Mada has Talabani repeating his call for dialogue. Among
the things Nouri doesn't want on the agenda is the status of Vice
President Tareq al-Hashemi. Shortly after the bulk of US forces left in
December, Nouri swore out an arrest warrant for the vice president who
was in the KRG and remained there until April. He is currently in
Turkey. The 'trial' against him started and with Nouri's Baghdad judges
holding a press conference in February to declare Tareq al-Hashemi
guilty, no one in their right mind would take what has gone in as fair
or impartial. AFP reports that his attorneys finally had enough yesterday and walked out: "We
decided to withdraw from the case as the appeals commission did not
review the appeals we presented to it," Muayad al-Izzi, the head of
Hashemi's defence team, told reporters, referring to their attempts to
have the case heard in a special tribunal rather than the Central
Criminal Court of Iraq.The CCCI, which held the fourth
hearing on the case on Sunday, responded by appointing two new lawyers
to replace those who withdrew.Press TV adds:
Hashemi
said in a statement issued on his website on May 17 that he was
considering the withdrawal of his lawyers from the case due to "legal
violations" including a refusal to transfer his trial to another court
and his lawyers not being permitted to meet with the accused members of
his staff or witnesses individually.
Strategy Page notes, " The
trial for some of the bodyguards of Sunni Arab vice president Tariq al
Hashimi, and the missing Hashimi himself, for the murder of six judges
has hit a snag as the judge refused to allow defense lawyers to present
evidence that might exonerate Hashimi. As a result of that ruling, and
several others that hurt the defense, the lawyers walked out. It does
appear that the Hashimi trial is more for show than an effort to
determine true guilt or innocence."
In England the 1984 Data Protection Act set up the Information Rights Tribunal.:
"A panel composed of the Tribunal Judge and two other non-legal
members, all appointed by the Lord Chancellor, hears appeals at venues
across the United Kingdom. The oral hearings are open to the public."
The Telegraph of London reports
today that the Tribunal has ordered the Foreign and Commonwealth Office
"to disclose parts of a note detailing a conversation between the two
leaders [Tony Blair and George W. Bush] on March 12 2003. Mr Blair and
Mr Bush are believed to have used the call to discuss a TV interview
given by then-French president Jacques Chirac two days earlier about
ongoing talks on Iraq at the United Nations." Andy McSmith (Independent of London) quotes
from the ruling, "The circumstances surrounding a decision by a UK
government to go to war with another country is always likely to be of
very significant public interest, even more so with the consequences of
this war." Jane Croft and James Blitz (Financial Times of London) quote
an unnamed person with the Foreign Office sounding as if it will appeal
("We will want to study the terms of the judgment more closely over the
coming days."). Why does it matter? For a number of reasons including
the historical record. It could also be the last word as to whether
or not there was an attempt to intentionally misread the position of
France. February 2, 2010, former Secretary of State for International Development Clare Short offered testimony to the Iraq Inquiry. From that day's snapshot:
MP
Clare Short: I noticed that Lord Goldsmith [in his testimony to the
Inquiry] said he was excluded from lots of meetings. That is a form of
pressure. Exclusion is a form of pressure. Then, that he was -- it was
suggested to him that he go to the United States to get advice about the
legal position. Now we have got the Bush administration, with very low
respect for international law. It seems the most extraordinary place in
the world to go and get advice about international law. To talk to
Jeremy Greenstock, who -- I'm surprised by his advice. I think to
interpret 1441 to say you have got to come back to the Security Council
for an assessment of whether Saddam Hussein is complying, but there
shouldn't be a decision in the Security Council, is extraordinarily
Jesuitical. I have never understood it before, and I think that's
nonsense, and it wasn't the understanding of the French and so on,
because I saw the French Ambassador later. So I think all that was
leaning on, sending him to America, excluding him and then including
him, and I noticed the chief legal adviser in the Foreign Office said in
his evidence that he had sent something and Number 10 wrote, "Why is
this in writing?" I think that speaks volumes about the way they were
closing down normal communication systems in Whitehall.
To
Tony Blair's assertion that he had to give up on chasing down a second
resolution because the French said they would not approve one, Short
called that "a deliberate lie" and explained that a decision was made --
as it had been in the US (she reminded everyone of the "freedom fries")
-- to blame the French and use that deceit as an excuse to avoid a
second resolution. She notes the French position was not "never" on a
second resolution but "not now" while inspections were ongoing.
In the US, actions took place and continue to take place in Chicago where the NATO Summit is taking place. Debra Sweet (World Can't Wait) explains, "Yesterday in Chicago we took to the streets for humanity and the planet! Watch video.
As Obama met with Afghan president Karzai and told the wlard that 'hard
days are ahead in Afghanistan' we gathered with thousands in downtown
Chicago in opposition to the war criminals meeting." . We'll note those
involving Iraq. Mary Wisniewski (Reuters) reports, "Nearly 50 U.S. military veterans at an anti- NATO
rally in Chicago threw their service medals into the street on Sunday,
an action they said symbolized their rejection of the U.S.-led wars in Iraq and Afghanistan." Francine Knowles and Sandra Guy report on the action for the Chicago Sun-Times.
Knowles and Guy note, "Speaking on behalf of the Iraq Veterans
Against the War, which organized the protest, he and others called upon
NATO to bring about the immediate withdrawal of troops from Iraq and
Afghanistan, full benefits for returning service members, including
mental health care; and reparations for the people of Iraq and
Afghanistan." China's press managed to cover it. Mu Xuequan (Xinhua) reports: Afghanistan
and Iraq veterans from across the United States converged in Chicago
on Sunday for a historic day of action against NATO, which is expected
to culminate with at least 40 Global War on Terror veterans returning
their war medals to NATO generals.The action followed a press
conference which began at 9 a.m. local time, marking the first national
gathering of veterans protesting NATO, which will open the two-day
summit on Sunday afternoon."We will march to NATO's front
door to return our medals, hand in hand with our Afghan brothers and
sisters, to tell the world's military leaders and NATO's generals that
our solidarity is stronger than their wars," Aaron Hughes, organizer of
Iraq Veterans Against the War (IVAW), said at a press conference held in
the Grant Park in downtown Chicago. "We will make our message of
justice, healing, and solidarity heard around the world."One of the participants was Iraq War veteran Steven Acheson who told Miranda Leitsinger (MSNBC) before the action,
"I feel like this is a really good way for me to kind of, not clear my
conscience, but just make a step in the direction of healing and kind of
reconciling with the Afghan people and the Iraq people. and let them
know that we're standing by their side and we're not standing with NATO
anymore. We don't agree with the policies that are driving these wars."
Again, that was before the action.
The
march yesterday was amazing with many thousands of people out on the
streets and the vets doing a very moving, symbolic throwing in of their
medals yesterday at the end of the march and dedicating each one to
things like the children of Afghanistan and Iraq who might not have
parents anymore and saying they're sorry to the Iraqi and Afghan people.
That was very moving. And then last night there were continuing
marches throughout the streets and yesterday a very moving march to the
house of [Chicago Mayor] Rahm Emanual led by people from the mental
health community who are suffering from the lack of health care and the
closing of clinics and sitting down in the street -- hundred of people
-- in front of Rahm Emanual's house. And then we -- CODEPINK -- led a
group that went to the consulates of the Canadians and the British and
the Germans. And there were several great demonstrations outside of
Obama's headquarters. So every day had something going on. Sorry it
was hard to follow but, boy, it was very active here.
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