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Supreme Court declines to take up Abu Ghraib detainee lawsuit

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The class-action lawsuit on behalf of 250 former Iraqi detainees sought compensatory and punitive damages for the victims of the alleged abuses. The lawsuit was aimed at widening the sphere of responsibility for the abuses by examining the role of private contractor interrogators and translators who allegedly participated in illegal conduct at the prison.

In dismissing the case, a three-judge appeals court panel ruled 2-1 that claims against the contractors were precluded under a doctrine the two majority judges called “battlefield preemption.”

Writing for the court, Judge Laurence Silberman said: “During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim [for damages] arising out of the contractor’s engagement in such activities shall be preempted.”

The government acted quickly to prosecute the offending military personnel, but no similar proceedings were initiated against military contractors at the prison, Silberman wrote. “This fact alone indicates the government’s perception of the contract employees’ role in the Abu Ghraib scandal,” the judge said.

The appeals court also ruled that the former Iraqi detainees were not empowered under the Alien Tort Statute to file a lawsuit in a US court seeking to enforce a violation of the law of nations. The judges said that although torture committed by a government is a violation of a settled international norms, the same act by a private contractor is not.

“Congress has never created this cause of action,” Silberman wrote. While Congress has empowered US residents to sue foreign governments for torture, federal law makers excluded from the law the possibility of filing a similar suit against American military officials overseas, or private individuals working with the US government overseas.

In a dissent, Appeals Court Judge Merrick Garland said he would allow the Iraqi detainees’ lawsuit to move forward against both military contractors.

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