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Supreme Court declines to take up Abu Ghraib detainee lawsuit

The Supreme Court declined without comment the case of 250 former Abu Ghraib detainees whose lawsuit against private contractors, for allegedly abusing and torturing Abu Ghraib inmates, had been thrown out of federal court.

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The appeals court also ruled that the former Iraqi detainees were not empowered under the Alien Tort Statute to file a lawsuit in a US court seeking to enforce a violation of the law of nations. The judges said that although torture committed by a government is a violation of a settled international norms, the same act by a private contractor is not.

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“Congress has never created this cause of action,” Silberman wrote. While Congress has empowered US residents to sue foreign governments for torture, federal law makers excluded from the law the possibility of filing a similar suit against American military officials overseas, or private individuals working with the US government overseas.

In a dissent, Appeals Court Judge Merrick Garland said he would allow the Iraqi detainees’ lawsuit to move forward against both military contractors.

“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors – who were neither soldiers nor civilian government employees,” Garland wrote.

“Neither President Obama nor President Bush nor any other executive branch officials 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,” he said. “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.”

In a brief urging the high court to take up the case, the detainees’ lawyers said it arises at a time when contractors outnumber members of the military in overseas operations. “This is a case about the commission of war crimes by private actors who violated state, federal, and international law,” said Vincent Parrett in his brief to the court.

“There are 217,832 contractor personnel providing services to the United States in Iraq and Afghanistan, answering not to the military chain of command but to for-profit corporations who receive a total of over $5 billion annually for their services,” Parrett wrote. “The [appeals court’s] holding has eviscerated one of the most effective means of deterring them from violating the law.”

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