see also: http://snipurl.com/6qov
Amnesty International blasts US 'war on terror'; 'The United States has lost its moral high ground' http://snipurl.com/6qp9 The U.S. civilian interrogators questioning prisoners at Abu Ghraib prison in Iraq work not under a military contract but on one from the Department of the Interior, a bureaucratic twist that could complicate any effort to hold them criminally responsible for abuse of detainees or other offenses... ------------------- http://snipurl.com/6qp1 The New York Times 26 May 2004 Who Would Try Civilians of U.S.? No One in Iraq By ADAM LIPTAK Though civilian translators and interrogators may have participated in the abuse at Abu Ghraib prison, prosecuting them will present challenges, legal experts say, because such civilians working for the military are subject to neither Iraqi nor military justice. On the basis of a referral from the Pentagon, the Justice Department opened an investigation on Friday into the conduct of one civilian contractor in Iraq, who has not been identified. "We remain committed to taking all appropriate action within our jurisdiction regarding allegations of mistreatment of Iraqi prisoners," Mark Corallo, a Justice Department spokesman, said in a statement. Prosecuting civilian contractors in United States courts would be "fascinating and enormously complicated," said Deborah N. Pearlstein, director of the U.S. law and security program of Human Rights First. It is clear, on the other hand, that neither Iraqi courts nor American courts-martial are available. In June 2003, L. Paul Bremer III, the chief American administrator in Iraq, granted broad immunity to civilian contractors and their employees. They were, he wrote, generally not subject to criminal and civil actions in the Iraqi legal system, including arrest and detention. That immunity is limited to their official acts under their contracts, and it is unclear whether any abuses alleged can be said to have been such acts. But even unofficial conduct by contractors in Iraq cannot be prosecuted there, Mr. Bremer's order said, without his written permission. Similarly, under a series of Supreme Court decisions, civilians cannot be court-martialed in the absence of a formal declaration of war. There was no such declaration in the Iraq war. In theory, the president could establish new military commissions to try civilians charged with offenses in Iraq, said Jordan Paust, a law professor at the University of Houston and a former member of the faculty at the Army's Judge Advocate General's School. The commissions announced by President Bush in the wake of the Sept. 11 attacks do not, however, have jurisdiction over American citizens. That leaves prosecution in United States courts. There, prosecutors might turn to two relatively narrow laws, or a broader one, to pursue their cases. A 1994 law makes torture committed by Americans outside the United States a crime. The law defines torture as the infliction of severe physical or mental pain or suffering. But some human rights groups suspect that the administration may be reluctant to use the law, because its officials, including Defense Secretary Donald H. Rumsfeld, have resisted calling the abuse at Abu Ghraib torture. "If they don't want to use the word `torture,' " Ms. Pearlstein said, "prosecutions under the torture act aren't likely." A 1996 law concerning war crimes allows prosecutions for violations of some provisions of the Geneva Conventions, including those prohibiting torture, "outrages upon personal dignity" and "humiliating and degrading treatment." Bush administration lawyers cited potential prosecutions under the law as a reason not to give detainees at Guantánamo Bay the protections of the Geneva Conventions. But the administration has said that the conventions apply to detainees in Iraq. Both the torture law and the war-crimes law provide for long prison sentences, and capital punishment is available in cases involving the victim's death. The broader law, the Military Extraterritorial Jurisdiction Act, allows people "employed by or accompanying the armed forces outside the United States" to be prosecuted in United States courts for federal crimes punishable by more than a year's imprisonment. People who are citizens or residents of the host nations are not covered, but Americans and other foreign nationals are. The law has apparently been invoked only once, in a case involving charges that the wife of an Air Force staff sergeant murdered him in Turkey last year. The case will soon be tried in federal court in Los Angeles. The law was passed to fill a legal gap that had existed since the 1950's, when Supreme Court decisions limited the military's ability to prosecute civilians in courts-martial during peacetime. In 2000, a three-judge panel of the federal appeals court in New York, citing that gap, reluctantly overturned the conviction of an American civilian who had sexually abused a child in Germany. In an unusual move, the judges sent their decision to two Congressional committees. That helped encourage enactment of the law that year. The law requires the Pentagon, in consultation with the State and Justice Departments, to establish regulations on how to carry it out. Though it was enacted four years ago, the regulations are still under consideration. In any event, there are gaps and uncertainties in the law. For one thing, it applies only to contractors employed by the Defense Department. Contractors hired by other agencies, like the C.I.A., are not covered. It is also unclear precisely where in the United States such prosecutions could be brought. Legal scholars have suggested that three places might be available: the area of the defendant's last known residence, the place where the defendant is first brought from abroad and the District of Columbia. In addition to such criminal charges, the companies that provided the translators and interrogators may be subject to civil suits for money, under a 1789 law that allows federal courts to hear "any civil action by an alien for a tort only, committed in violation of the law of nations." Torture is such a violation, legal experts say. The Supreme Court is considering a case concerning the scope of that law, which has been used to hold American companies accountable for abusive actions abroad. But, in an echo of the defenses offered by several members of the military police who have been ordered to face courts-martial for actions in Iraq, companies may be able to offer a "government contractor defense," in an effort to show they were operating under specific instructions from the government.
