20 years later, Abu Ghraib detainees get their day in US court

Twenty years ago this month, photos of abused prisoners and smiling US soldiers guarding them at Iraq's Abu Ghraib prison were released, shocking the world.

Now, three survivors of Abu Ghraib will finally get their day in US court against the military contractor they hold responsible for their mistreatment.

The trial is scheduled to begin Monday in US District Court in Alexandria and will be the first time that Abu Ghraib survivors can bring their claims of torture to a US jury, said Baher Azmy, a lawyer with the Center for Constitutional Rights representing the plaintiffs.

The civil suit's defendant, CACI, supplied the interrogators who worked at the prison. The Virginia-based contractor denies any wrongdoing and has emphasised throughout the 16 years of litigation that its employees are not alleged to have inflicted any abuse on any of the plaintiffs in the case.

The plaintiffs, though, seek to hold CACI responsible for setting the conditions that resulted in the torture they endured, citing evidence in government investigations that CACI contractors instructed military police to "soften up" detainees for their interrogations.

Retired Army Gen. Antonio Taguba, who led an investigation into the Abu Ghraib scandal, is among those expected to testify. His inquiry concluded that at least one CACI interrogator should be held accountable for instructing military police to set conditions that amounted to physical abuse.

There is little dispute that the abuse was horrific. The photos released in 2004 showed naked prisoners stacked into pyramids or dragged by leashes. Some photos had a soldier smiling and giving a thumbs up while posing next to a corpse or detainees being threatened with dogs or hooded and attached to electrical wires.

The plaintiffs cannot be clearly identified in any of the infamous images, but their descriptions of mistreatment are unnerving.

Suhail Al Shimari has described sexual assaults and beatings during his two months at the prison. He was also electrically shocked and dragged around the prison by a rope tied around his neck. Former Al-Jazeera reporter Salah Al-Ejaili said he was subjected to stress positions that caused him to vomit black liquid. He was also deprived of sleep, forced to wear women's underwear and threatened with dogs.

CACI, though, has said the US military is the institution that bears responsibility for setting the conditions at Abu Ghraib and that its employees weren't in a position to be giving orders to soldiers. In court papers, lawyers for the contractor group have said the "entire case is nothing more than an attempt to impose liability on CACI PT because its personnel worked in a war zone prison with a climate of activity that reeks of something foul. The law, however, does not recognise guilt by association with Abu Ghraib."

The case has bounced through the courts since 2008, and CACI has tried roughly 20 times to have it tossed out of court. The US Supreme Court in 2021 ultimately turned back CACI's appeal efforts and sent the case back to the district court for trial.

In one of CACI's appeal arguments, the company contended that the US enjoys sovereign immunity against torture claims and that CACI enjoys derivative immunity as a contractor doing the government's bidding. But US District Judge Leonie Brinkema, in a first-of-its-kind ruling, determined that the US government can't claim immunity when it comes to allegations that violate established international norms, like torturing prisoners, so CACI, as a result, can't claim any derivative immunity.

Jurors next week are also expected to hear testimony from some of the soldiers who were convicted in military court of directly inflicting the abuse. Ivan Frederick, a former staff sergeant who was sentenced to more than eight years of confinement after a court-martial conviction on charges including assault, indecent acts and dereliction of duty, has provided deposition testimony that is expected to be played for the jury because he has refused to attend the trial voluntarily. The two sides have differed on whether his testimony establishes that soldiers were working under the direction of CACI interrogators.

The US government may present a wild card in the trial, which is scheduled to last two weeks. The plaintiffs and CACI have complained that government assertions have hampered their cases that some evidence, if made public, would divulge state secrets that would harm national security.

Government lawyers will be at the trial ready to object if witnesses stray into territory they deem a state secret, they said at a pretrial hearing on 5 April.

Judge Brinkema, who has often overseen complex national security cases, warned the government that if it asserts such a privilege at trial, "it better be a genuine state secret."

A @hrw report has highlighted once again a lack of accountability for war crimes committed by US soldiers in Iraq. Many among the over 100,000 detained in prisons like Abu Ghraib were tortured but have received no justice, writes @AsimCP 👇 https://t.co/bsUv3ZF63Q

— The New Arab (@The_NewArab) October 12, 2023

Jason Lynch, a government lawyer, assured her, "We're trying to stay out of the way as much as we possibly can."

Of the three plaintiffs, only Al-Ejaili, who now lives in Sweden, is expected to testify in person. The other two will testify remotely from Iraq. Brinkema has ruled that the reasons they were sent to Abu Ghraib are irrelevant and won't be given to jurors. According to court papers, all three were released after periods of detention ranging from two months to a year without ever being charged with a crime.

"Even if they were terrorists, it doesn't excuse the conduct that's alleged here," she said at the 5 April hearing.