Law and Disorder Radio

Law and Disorder February 23, 2009

The First 100 Days – Part 3

Private Military Contractors – Susan Burke

We go now to look at the abuse of force by Private Military Contractors and their role in illegal torture tactics and interrogation. In one case currently in litigation, four former Abu Ghraib detainees are suing two U.S. military contractor corporations and three individual contractors. The four were wrongly imprisoned, tortured and later released without charge.

According to the complaints, the defendants abused detainees physically and mentally and then destroyed documents, videos and photographs; prevented the reporting of the torture and abuse to the International Committee of the Red Cross. They actually hid detainees and other prisoners from the Red Cross; and misled non_conspiring military and government officials about the state of affairs at the Iraq prisons.

The defendants are CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Services Inc., an Alexandria, Va.-based division of L-3 Communications Corp. and three individual contractors, Adel Nakhla, of Maryland, Timothy Dugan, of Ohio, and Daniel Johnson, of Seattle.

Susan Burke:

  • Blackwater case pending before judge reggie walter in district of columbia federal court.
    Nassir massacre case
  • representing the families and people injured in that massacre. in the meantime the justice dept is looking into indicting blackwater soldiers
  • Titan and CACI International Inc
  • The CACI International Inc case on interrogation, the court says that this interrogation company could be liable because they exercised corporate control over the interrogators.
  • The same court said the translator company L3 could not be held liable because they turned over the translators to the military.
  • There are appeals on both issues, they’ve been briefed and are waiting for oral arguement.
  • during the appeals, Susan’s lawfirm has been contacted by many additional victims.
  • “As I litigate these cases, it struck me that we really need to stop these corporations from acting as if they are the United States.
  • All these companies are trying to wrap themselves in sovereign immunity, wrap the flag around themselves. and say that we simply can’t even look at what they did.
  • One of the companies CACI International Inc sued for defamation, because somebody dared to criticize them. Rhandi Rhodes the talk show host.
  • I would like to see immediately a real push to make the government’s position real clear.
  • Corporations are not the United States and should not automatically be entitled any type of immunity.
  • The Bremer order which has been in effect has insulated them from being sued in Iraq.
  • As a result the Iraqis who want to obtain justice have to come to the United States.
  • By allowing there to be a derogation to evade, the laws in black and white that are on the decks right now that say,
    you can not hire soldiers.
  • By the fact that those laws are being ignored and we’re increasing our firepower with mercenaries, the current administration has essentially bought its way from having to draft people.
  • Its a troubling thing because we’ve created a class of mercenaries.
  • They define themselves as mercs
  • They are soldiers for hire, they’ll fight for anyone who pays them.
  • That’s why we have to clamp down and enforce the law against the existence of mercenaries,
  • We’ve got to take away the veneer of legitimacy, what the defense industry has thrown over the illegal mercenary industry.


Wide View – Research Professor of Law, Michael Tigar

Michael Tigar is an expert in Constitutional Law and the Supreme Court. He has represented Terry Nichols of the Oklahoma City Bombing, Angela Davis, and Lynne Stewart. Tigar outlines several steps the Obama Administration must do to turn back the major breaches in U.S. civil liberties.

Michael Tigar:

  • There is now a systematic breaking down of all barriers against government intrusion into the private lives of people.
  • Alien Enemy Combatants: A creation of a new class of people who are thought to be utterly right-less, both as to whether they can be detained, the conditions of their detention, and the manner in which they can be held and interrogated.
  • Meanwhile, we have legal fictions such as the Vice President saying he’s neither a member of the executive or legislative branch, and therefore being subject to the rules of both is subject to the rules of neither.
  • We have justice system staffed with people whose only qualification is their asserted ideological purity.
  • We have two aggressive wars, all done to the tune of the most massive federal debts in history.
  • This, accompanied by the largest transfer of wealth from the poor, and working class to the already wealthy, coupled with the dismantling of regulatory barriers of how greed and avarice operate.
  • It is the lack of any significant organized resistance from legislators, and with some few bright exceptions, judges and lawyers that define for us the task that lies ahead.
  • Eric Holder, a good lawyer, was among the group of people in the Clinton administration that even though they had all the evidence, that they would not prosecute Pinochet.
  • National State Secrets: the case of journalist Quentin Reynolds who took a ride on an Air Force jet and it crashed, his widow sued under the federal tort claims act saying that she thought there was negligence. The United States convinced the Supreme Court that to disclose the reasons why that plane crashed might involve state secrets, and that she should not be able to sue.
  • Sixty years later the maintenance file on that plane was on unsealed. It turned out that it was a routine maintenance error that caused the crash. Behind the curtain of states secrets is illegality and mendacity.
  • How many years did it take to get Pinochet for any kind of proposed criminal accountability, almost 20, because of states secrets.
  • The tort system, that is the way we enforce rules about safe products, it’s the way that we enforce the rules about the toxic substances that poison people, it’s the way that we deal with the kleptocracy that rules wall street.
  • It’s so well tested – Marbury v Madison 1803 – Chief Justice Marshall said that he could decide a case was unconstitutional.

Guest – Michael Tigar, a criminal defense attorney who has represented some of the country’s most controversial clients. He is also a member of the Duke University Law School faculty.


Jonathan Hafetz: Enemy Combatant:

In June of last year, an en banc Federal Appeals Court in Virginia ruled 5-4 that the Bush Administration could subject Ali Al-Marri to indefinite detention even though he was a resident of the United States. The court in the fourth circuit ruled that US residents could be locked up indefinitely as enemy combatants even though they were never charged with a crime. Al-Marri is the only enemy combatant currently in detention and without charges in the United States.

Jonathan Hafetz:

  • Can the president declare legal residents including American citizens, enemy combatants, deprive them a right to a trial and hold them indefinitely.
  • This, based on the idea that there is a global and never ending war on terror.
  • Though on sovereign soil, no right to habeas corpus. He was declared an enemy combatant, the case was lost in an embank in the fourth circuit
  • Why is this case so critical to liberty in the United States . . . ?
  • The five judges who ruled against the case, said essentially that there must be this power to effectively detain people in the United States to prevent terrorist attacks.
  • Ruling: the president can label legal residents including American citizens an enemy combatant in the United States, without a trial, no habeas, hold them indefinitely.
  • It’s the idea of the president to use the military to seize people including citizens from their home or places of work.
  • A very dangerous power to allow any president to have, it corrupts the justice system, it can be used as a weapon,
  • Seven years of these cases of assertion of executive power, and the courts have not answered this fundamental basic question, who can be detained by the military, who is a soldier and who is a civilian?
  • All that is stated is that if someone picks up a weapon on the battlefield, that person can be a soldier, but in the most extreme cases in the war on terror – – such as being picked up in the United States as a soldier in the extended geographic concept of the war on terror – – the courts have not grappled with whether there is habeas in those cases.
  • Even the judges who ruled against us did say that it included American citizens.

Guest – Jonathan Hafetz, Staff Attorney at the American Civil Liberties Union, National Security Project.


War Powers – Jules Lobel

Co-host Michael Ratner and Jules Lobel  have litigated 14 cases concerning the power to go to war.  “The least effective area of law is holding back the use of war powers.”  In the Bush Administration, there was an excessive use in the power to go to war, in Afghanistan, Iraq and around the world.  Jules Lobel has testified in front of Congress recently to get a more restrictive law passed by Congress that would actually hold back presidential war making.  Unfortunately, Congress passed the Authorization To Use Military Force to go to war on executive order in the name of national security.

Attorney Jules Lobel:

  • The president shall not start a war without congressional approval.
  • That would not only reverse what the position was in the last 8 years, but the last 50 years.
  • For example Iran, there’s all this speculation that the US will attack Iran.
  • I think if Obama says I will not attack Iran without Congressional approval, a signal then to Iran that the US will have to fiddle with Congress and no immediate threat.
  • The point is the president should not be making this decision on his own!!!
  • Presidents for the last 50 years have asserted the president has a right to use US force abroad,
    not in self defense but when some vague notion of our national security is at stake.
  • I think Obama should say that we will clearly reverse this.
  • What the Bush and Clinton administration which is we can go to war in violation of the UN charter
  • The US has signed to agree and abide by UN Charter that only allows the US to go to war in two circumstances.
  • One is self defense of an attack against us. Second is we think there’s a grave threat of national security or world peace.
  • We have a right to go the security council and get them to authorize, and we did so when Iraq attacked Kuwait.
  • Ok for Obama administration to continue to use force in Afghanistan under constitution and UN charter?
  • Congress authorized a very narrow use of force against Al-Qaida
  • Still we have to decide, whether or not its legal, the best policy of approach,
  • The model is focused on war and not criminal justice.
  • Unfortunately they have a narrow authorization, which the Bush administration has argued for a much broader
  • I don’t think they have authorization to use force against people in the United States
  • Jules: when I testified before Congress I said we should put in a war powers act that doesn’t violate our treaties.
  • The restraints on the dogs of war shouldn’t be just from the US Congress, because they often go along with unreasonable executive persuasion,  such as the Gulf of Tonkin and the AUMF
  • There has to be enforcement at least of the International treaties, even though the political elite have ignored it.
  • Jules: i think the legislation that I testified on of possibly getting through with some amendment or beefing up the war powers act and making it effective.
  • This was mostly done in secret, secret memos, I think Obama should publish the secret memos.
  • We need to publish and expose what was done in secret, including memos written by the DOJ, which should never be secret.
  • Legal memos:  Obama can de-classify this huge slew of material that would indicate just how far off the rails the Bush administration was.
  • Yes on prosecution to bring accountability, there is a very basic step preliminary to building evidence and cases, you have an institutional precedence to follow executive authority.

Through the U.S. Center for Constitutional Rights, Jules Lobel has litigated important issues regarding the application of international law in the U.S. courts. In the late 1980’s, he advised the Nicaraguan government on the development of its first democratic constitution, and has also advised the Burundi government on constitutional law issues.

Professor Lobel is editor of a text on civil rights litigation and of a collection of essays on the U.S. Constitution, A Less Than Perfect Union (Monthly Review Press, 1988). He is author of numerous articles on international law, foreign affairs, and the U.S. Constitution in publications including Yale Law Journal, Harvard International Law Journal, Cornell Law Review, and Virginia Law Review. He is a member of the American Society of International Law.


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