Abuse of trust.

Abuse of trust.

Abuse of trust.

The law, lawyers, and the court.
Jan. 21 2005 11:15 AM

Abuse of Trust

The POW scandal you haven't yet heard about.

This nation has a special responsibility to prevent the torture of Americans held as prisoners of war. Our POWs have been brutally tortured at command direction in war after war, including the Korean, Vietnam, and most recently, the Gulf War; and it's clear that we need to do whatever we can to break this pattern. Yet when 17 of our tortured Gulf War POWs and 37 of their family members said "enough" and joined together to bring a historic civil action to hold their Iraqi torturers liable, they were shocked—having won their case in federal court—to find the Department of Justice seeking to erase their judgment and "absolve" their torturers.

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The Supreme Court has an opportunity to set aside this shocking breach of trust—itself apparently a somber footnote to the detainee abuse scandal. A case presenting the issues, Acree v. Republic of Iraq, was presented to the court by the POWs on a writ of certiorari last December, and the government response is due Feb. 18. Whether or not the court agrees to hear this case could well seal the fate of American GIs held as POWs in future wars.

The story of Acree began during the Gulf War, when American POWs were brutally tortured by the Iraqis. Saddam Hussein's secret services broke bones, shattered skulls, whipped, burned, shocked, beat, and urinated on American prisoners. One was so battered, it was later reported that his body looked like it had been dipped in indigo ink. Another had his teeth broken through electric shock. Many suffered through their own faked executions. They were starved so severely that one was forced to eat the scabs off his body. And because Iraq had publicly said it would use these POWs as "human shields," their spouses did not know whether they were wives or widows.

After the war, and with the help of a former legal adviser to the Department of State, 17 of these POWs and 37 of their family members brought a lawsuit in United States District Court against Saddam Hussein and the Republic of Iraq. (In the interest of full disclosure, I serve as co-counsel on behalf of these POWs and their family members.) This suit, filed well before the current Iraq war, with service actually executed by the Department of State, was brought only after Iraq ignored repeated offers to submit the case to international arbitration. The litigation resulted in a substantial and historic judgment awarded to the POWs and their families. Judge Richard Roberts, the judge in the case, pointed out in his opinion that "POWs are uniquely disadvantaged and deterring torture of POWs should be of the highest priority." The impact of his judgment against the torturers was, exactly as the POW's had intended, to dramatically increase deterrence against future torture of American POWs.

Historically the United States has been a world leader in seeking to prevent torture. Today, along with most nations, it is bound by the Third Geneva Convention for the Protection of POWs. That convention bans all torture and inhumane treatment of POWs and, as a core enforcement mechanism, provides in Article 131 that no state may "absolve" a torturing state of "any liability" for their torture. This provision is particularly aimed at holding the state itself liable and banning any removal of that liability at the conclusion of a war.

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Sadly, along came the Abu Ghraib scandal, setting aside this historic tradition and the professional judgment of our military JAG officers and State Department experts. As is now well known, one effect of the abuse scandal was to undermine deterrence against the torture of American POWs in future wars (this, along with its catastrophic political cost to the Iraq war effort and, more broadly, to our nation's reputation). But, in a perfect storm of bad news for future American POWs, while the now infamous abuse decisions were still policy, the Justice Department went into court to erase the POWs' judgment and its message of liability for torture. Judge Roberts dismissed the government effort as "without merit," but, on appeal, the U.S. Court of Appeals for the District of Columbia set aside the judgment on a technical issue neither raised nor briefed by the parties. Even the infamous Korematsu decision in World War II, legalizing the shameful incarceration of Japanese Americans, was not reached by simply ignoring the law and pleadings in its zealous support for a wartime executive branch—as did the Court of Appeals here.

The Justice Department argued in its pleadings that it now opposes the POWs judgment simply because it needs the money in question for the reconstruction of Iraq, but it has been unwilling to open talks with the POWs about that issue (despite ongoing payments to Kuwait for Gulf War damage). And it is certainly a dramatic coincidence that its opposition to this historic precedent against torture emerged only during the period of now-repudiated legal arguments, dumbing down the legal definition of torture.

Had the D.C. Court of Appeals truly reflected on the government's argument that it needed to set aside the POWs' judgment to use the money for the reconstruction of Iraq, it would have seen it as hollow. The Iraq-blocked assets initially available to pay the judgment had already been seized by the government. Indeed, when it seized those blocked assets the government made special provision to pay $100 million on a judgment won by former hostages in Iraq, while ignoring a plea from 20 distinguished American former national security officials, including a former chairman of the Joint Chiefs of Staff, to set aside an escrow to pay the POW judgment. And Iraqi oil revenues were protected from execution by executive order. Moreover, 19 months after the decision to set aside our treaty obligations and stiff the POWs, most of the funds earmarked for reconstruction still are unspent, whereas many other claims against Iraq are being honored—including billions still being paid to Kuwait from Iraqi oil revenues.

If the Court of Appeals decision stands in the Acree case, the consequences will be catastrophic. Future tyrants will hear the message, like a fire bell in the night, that the United States has little concern for its own POWs. Morale will decline in our armed forces as the reality sinks in that our government has sided with their torturers over them. A core enforcement mechanism of the POW convention, as well as our reliability as a treaty partner, will be undermined by our remarkable decision to "absolve" a torturing state in violation of the convention. And the rule of law here at home will be eroded by a blatant setting-aside of both substance and procedure in an ill-conceived policy judgment about helping the Iraq war effort. Moreover, the decision will undermine Congress' important initiative in its 1996 Anti-Terror Amendments, which added civil litigation against terror states to our tool kit in the war on terror.

It is wrong to seek to pay for the reconstruction of Iraq on the backs of American POWs brutally tortured by Iraq. It is wrong to place our nation in violation of the important POW convention, and it is wrong to interpret away the intent of Congress in adding a crucial new tool in the war on terror: that of threats of substantial judgments against terror states. Most of all, however, it is an abomination to treat real American heroes, who have given so much for their nation, with the disdain the government has shown in this case.