No One—Not Even the President—Can Declare Torture Lawful
By Baher Azmy
“It is beyond the power of even the president to declare [torture] lawful,” wrote Judge Henry Floyd on October 21. These words were part of a concurring opinion to a unanimous court of appeals decision ordering the Center for Constitutional Rights’ case against CACI Premier Technology, Inc., to go forward. The Center for Constitutional Rights is suing CACI for its role in the torture of four Iraqi civilians at the notorious Abu Ghraib prison, where the private military contractor made millions of dollars from the U.S. government by providing interrogation services.
It is, to my knowledge, the most definitive appellate court ruling proclaiming the illegality of torture in the post-9/11 era. Torture, the court ruled, is illegal—no ifs, ands, or buts.
The Fourth Circuit also reasserted the role of the courts in reviewing cases alleging unlawful conduct even if it involves military detention and judgment. It rejected CACI’s argument that torture should be considered a “political question” beyond the capacity of courts to resolve. The court unequivocally held that “conduct by CACI employees that was unlawful when committed is justiciable, irrespective whether the conduct occurred under the actual control of the military.”
The October 21 ruling reverses a district court decision that was largely a retread of discredited Bush-era legal theories put forth in the infamous torture memos. In this context, it was particularly gratifying to read the court’s implicit reference to the memo’s author, John Yoo: “The fact that the president—let alone a significantly inferior executive officer—opines that certain conduct is lawful does not determine the actual lawfulness of that conduct. The determination of specific violations of law is constitutionally committed to the courts, even if that law touches military affairs.”
The appeals court ruling ended what was CACI’s third attempt to have the long-running case dismissed.
The district court rejected CACI’s first effort to dismiss the case in 2009, and while a divided three-judge panel of the Fourth Circuit Court of Appeals initially sided with CACI, the full Fourth Circuit ruled the case could proceed in 2012.
On remand, the district court sided with CACI in its second effort to make the case go away based on the Kiobel Supreme Court decision on the reach of the Alien Tort Statute. But on appeal, the Court of Appeals ruled in favor of our plaintiffs. The court found that a case involving a U.S.-based contractor, under contract with the U.S. government, operating in a U.S-run detention facility in U.S.-occupied Iraq, alleged to have conspired with low-level U.S. soldiers to commit torture and other war crimes at Abu Ghraib, satisfied Kiobel’s “touch and concern” test [PDF]—one of the only appellate court decisions permitting Alien Tort Statute claims to go forward.
CACI filed its latest motion to have the case dismissed in 2014, and the district court again ruled in their favor. The Center for Constitutional Rights again appealed, and we received an impressive array of support from constitutional scholars, retired military officers, and human rights groups.
Hours after the latest Fourth Circuit ruling, the district judge recused himself and the case has been reassigned.
Together, these developments make us optimistic that our clients will finally get their day in court. One of the plaintiffs, Salah Hassan, an Al Jazeera journalist who recently spoke at the United Nations in Geneva about the case, reacted to the news of Friday’s ruling: “Today, part of justice was achieved, and this is something wonderful, not only for me and the other plaintiffs, but for all the just causes in the world.”
The Center for Constitutional Rights is a grantee of the Open Society Foundations.
Baher Azmy is legal director at the Center for Constitutional Rights.