The federal Appeals Court decision to toss a lawsuit claiming contractors tortured detainees in Iraq's Abu Ghraib prison is what you'd expect from a tyranny. The new ruling brushes off the charges by 212 Iraqis who said they or their late husbands were abused by US personnel at Abu Ghraib.
The suit charged private security firm CACI International, of Arlington, Virginia, with crimes inside the Baghdad hellhole.
But in a 2-1 ruling, the DC Court of Appeals said CACI "is protected by laws barring suits filed as the result of military activities during a time of war."
This opinion was written by Judge Laurence Silberman and supported by Judge Brett Kavanaugh, appointed by former US presidents Ronald Reagan and George W Bush respectively.
"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 pre-empted," Silberman wrote.
If so, with about as many US-led contract mercenaries as regular army involved in the Iraq conflict, this decision preposterously exempts some 150,000 fighters from legal action for any crimes they commit.
"This abuse and torture of these prisoners detained during war time constituted war crimes and torture in violation of the Geneva Conventions of 1949, the US War Crimes Act, the Convention against Torture and the US Federal Anti-torture Statute - felonies, punishable by death if death results as a violation thereof," said Francis Boyle, an international law authority at the University of Illinois, Champaign-Urbana.
"Judges Silberman and Kavanaugh have now become Accessories After the Fact to torture, war crimes and felonies in violation of US federal law and international criminal law."
Dissenter Judge Merrick Garland, appointed by former president Bill Clinton, argued the law does not protect independent contractors, particularly when they are accused of acting outside the rules or instructions of their military overseers.
"The plaintiffs in these cases allege 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," said Garland.
"No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors, who were neither soldiers nor civilian government employees."
Judge Silberman was named to the Federal bench in 1985 by Reagan and in 2008 received the Presidential Medal of Freedom, the nation's highest civilian award, from (surprise!) Bush, the man who launched the Afghan and Iraq aggressions.
Silverman was supported in his opinion by Kavanaugh, a former legal aide to Bush who was later appointed by Bush to the Federal bench.
In July, 2007, senators Patrick Leahy and Dick Durbin accused Kavanaugh of "misleading" the Senate during his nomination.
In a statement issued at the time opposing the appointment, Durbin prophesied: "By every indication, Brett Kavanaugh will make this judgeship a gift that keeps on giving to his political patrons, who have rewarded him richly with a nomination coveted by lawyers all over America."
That, of course, is exactly what happened. Here's what aroused Durbin's concern:
"For example, he (Kavanaugh) would not tell us his views on some of the most controversial policy decisions of the Bush administration, like the issues of torture and warrantless wiretapping. He would not comment.
"He would not tell us whether he regretted the role he played in supporting the nomination of some judicial nominees who wanted to permit torture as part of American foreign policy.
"It would have been so refreshing and reassuring if Brett Kavanaugh could have distanced himself from their extreme views.
"But a loyal White House counsel is not going to do that. And that is how he came to this nomination."
That is also how he came to dismiss the torture charges against contractor CACI.
It should be remembered that the Abu Ghraib inmates were suspects, imprisoned without due process or trials. Abu Ghraib's commanding officer, Brigadier General Janis Karpinski estimated that 90 per cent of them were innocent.
President Barack Obama already has the chance to nominate judges for 21 seats on the federal appellate bench, more than 10 percent of the 179 judges on those courts and at least half a dozen more seats should open in the next few months.
In a Detroit speech, Obama said the role of our courts "is to protect people who don't have a voice...the vulnerable, the minority, the outcast..."
Surely, hundreds of foreign prisoners tortured in an illegal war made by the US, or their survivors, are supplicants entitled to a fair hearing?
