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September|October 2005
The Prudent Jurist By William H. Simon
Evil Twins By John Wolfson
Elder Counsel By Louisa Lombard
U-Hell By Nicholas Hengen
Torture, Inc. By Tara McKelvey
Was the Plant a Plant? By Demian Bulwa
Cases & Controversies

Torture, Inc.

Will two American corporations be held liable for the abuse that took place at Abu Ghraib?

By Tara McKelvey

ADEL NAKHLA, A 49-YEAR-OLD EGYPTIAN-BORN COMPUTER TECHNICIAN, worked at the Abu Ghraib prison as a translator for Titan Corporation, an American firm supporting government operations there, in 2004. He was dismissed from the company in May of that year.

What happened during his time in Iraq is a matter of dispute—and part of a civil lawsuit currently being considered by the Federal District Court of the District of Columbia. But the accusations are damning: In a report about an investigation he undertook at the behest of the commander of United States forces in Iraq, Maj. Gen. Antonio Taguba says he suspects that Nakhla abused detainees at the prison. In an Army report by Maj. Gen. George R. Fay and Lt. Gen. Anthony R. Jones about abuses at Abu Ghraib, a civilian contractor who partially fits Nakhla's description is said to have "raped a 15 to 18-year-old male detainee," according to another detainee, who recounted that he "heard screaming and climbed to the top of his cell door to see over a sheet covering the door of the cell where the abuse was occurring." According to the Fay-Jones report, the same detainee reported that a female soldier took pictures of the rape.

Not surprisingly, Nakhla has been keeping a low profile in recent months, and his attorney, Adam L. Rosman of Zuckerman Spaeder, and Titan spokesman Wil Williams have declined to comment on the case. But the evidence produced during the civil trial could turn Nakhla into a villain, or it could exonerate him. It will also help determine the outcome of Saleh v. Titan Corp., one of the most significant cases against private contractors filed in recent years.

THE MILITARY BEGAN SHIFTING SUBSTANTIAL RESPONSIBILITY for frontline operations to private contractors in the 1990s. According to Deborah Avant in Foreign Policy, in the Persian Gulf War in 1991, the ratio of contractor to military personnel was roughly one to 50. By the mid-1990s, during the conflicts in the Balkans, the ratio changed to one to 10. This has been good news for those companies, like Titan, that rely heavily on government work. CACI, for example, which is based in Arlington, Va., derived more than 95 percent of its revenue in its most recent fiscal quarter from government contracts. Through a subsidiary, CACI PT, Inc., the company sent approximately 30 interrogators to work at Abu Ghraib in August 2003. Meanwhile, Titan, which is headquartered in San Diego, claims to have a "national security focus." It sent roughly 4,000 linguists tohelp interrogators and other members of the coalition forces in Iraq.

Several contractors are implicated in military reports that detail torture at Abu Ghraib. The Fay-Jones report describes 44 cases of detainee abuse there, with CACI and Titan employees apparently involved in several incidents. While Nakhla's possible rape of the adolescent boy may be the most graphic, even lesser reports are disturbing. In one incident, a CACI contractor threatened to send a detainee awaiting interrogation to a sergeant who had just cut off a second detainee's air supply and twisted his arms. CACI has issued a public statement on its website describing the lawsuit as "malicious and farcical." Today, there are numerous legal actions involving detainees and torture, including Saleh v. Titan, which was filed in June 2004 in San Diego. But Saleh and a copycat suit, Ibrahim v. Titan, filed a month later in the District of Columbia, unlike the other cases filed against the government, are civil actions dealing with torture and are against private contractors.

Saleh is being brought by Susan L. Burke, a lawyer at the Philadelphia firm of Montgomery, McCracken, Walker & Rhoads. A former Army brat, she said she believes in a military code of ethics that forbids torture and in an America that supports freedom, democracy, and human rights. With sunny optimism, a fondness for clichés, and a trusting manner ("I don't hold my cards close to my chest," she said), she seems an unlikely maverick in the international legal sphere. But through enthusiasm and aggressive filing, she's found herself at the forefront in developing a new type of case.

Burke based the lawsuit on the Alien Tort Claims Act of 1789, which was originally designed to combat pirates on the open seas, and on the Racketeer Influenced and Corrupt Organizations Act of 1970. Both have been successfully used by human rights groups to hold American companies responsible for wrongdoing in other countries. The ATCA has been an especially powerful tool. Over the past 25 years, lawyers with the Center for Constitutional Rights have used it as a way to nail multinational corporations for crimes committed abroad. Most recently, they led the suit against the Unocal Corporation, a multinational natural-resource producer, claiming that the corporation had provided financial support for Burmese soldiers who pressed villagers into conscripted labor. The case was settled in December 2004 for an undisclosed, but likely very large, amount.

Under the ATCA, Burke has to show that the contractors themselves harmed the detainees. With the help of the military reports and firsthand accounts from plaintiffs, she should be able to present a strong argument that the detainees were injured, leaving open the question of the contractors' direct involvement.

But Burke's main hope is that she can win with RICO, since the civil provisions of that law allow both for tripling whatever compensation a jury awards for the injury, as well as for recovering the fees of the plaintiffs' attorneys. But to win with RICO, Burke will likely have to show two things: that they were negligent in their behavior and that the contractors were in a direct conspiracy to earn business by torturing people.

Burke is convinced she'll be able to show negligence. "There will be a huge paper trail about their intent to make money and their failure to train or supervise their employees and their reluctance to pull people out of the theater when things went wrong," she said. "Titan and CACI want to make money. They sent untrained interrogators and translators over to the theaters even though they were dangerous to the prisoners."

As for the conspiracy question in RICO, Burke thinks she'll win and that documents she'll find will prove her instincts right. But other observers are dubious. "By being cruel and torturing people, you're going to increase our profits?" laughed Angela B. Styles, a former administrator for federal procurement policy at the Office of Management and Budget. "This case doesn't look like it was written to win."

No matter how it comes out, however, Saleh has been applauded by human rights lawyers as a way of uncovering the truth behind a government policy that may have led to the now well-documented torture—mainly because of the case's potential to obtain through the legal proceedings memos, governmental contracts, and other documents likely to help clarify what happened.

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