‘At Abu Ghraib, There Was a Conspiracy to Torture’CounterSpin interview with Katherine Gallagher on Abu Ghraib verdict

Janine Jackson interviewed the Center for Constitutional Rights’ Katherine Gallagher about the Abu Ghraib verdict for the November 29, 2024, episode of CounterSpin. This is a lightly edited transcript.

Intercept (11/12/24)

Janine Jackson: For a press corps that described the grievous abuse of Iraqi detainees at the prison in Abu Ghraib as “seared into the American consciousness,” there’s been relatively little interest in the fact that a federal jury has just found defense contractor CACI guilty of conspiring in that abuse.

Al Shimari v. CACI International was filed in 2008 and, CounterSpin listeners will know, has been fought and fought and fought. And now, while its unclear what justice would look like for victims of torture, there is some acknowledgement of harm, and the fact that it was people, and not nameless forces in the “fog of war,” who were to blame.

How meaningful this verdict becomes could shape things going forward, given the US military’s increased reliance on private contractors, who’ve evidently been led to understand that they are above the law.

We’re joined now by Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, who have held onto this case all the way. Welcome back to CounterSpin, Katherine Gallagher.

Katherine Gallagher: Thanks so much for having me back.

JJ: First of all, congratulations. I’m not sure people understand that, just because the paper says, “Oh, this was horrible abuse. Our conscience is shocked,” doesn’t mean that anything happens. So the law isn’t justice, but if you use the law, it’s something. So first of all, I want to say thank you.

KG: Thank you, thank you for that acknowledgement, and, really, the thanks and the effort was first and foremost to our clients, who filed this case 16-and-a-half years ago, and stuck with it and stuck with us and stuck with US courts through a rollercoaster ride of moments where they thought that justice might be coming, and then others where the case was dismissed and deep disappointment. So I agree, the law is not always an answer, but it can certainly be a tool, as it was in this case, to get some measure of justice for Suhail, Asa’ad and Salah.

JJ: I’ll ask you to say their names, actually, because they’re not often named. So the plaintiffs in this case, that made it this far, say their names.

Middle East Eye (3/22/23)

KG: Salah al-Ejaili came and testified in person in Virginia in this case. He is a journalist, and he was working as a journalist for Al Jazeera at the time he was detained and tortured at Abu Ghraib. The second plaintiff is Asa’ad al-Zuba’e. He is a fruit vendor in Iraq, and he testified, via video link, live in the courtroom in Alexandria. And then the third plaintiff is Suhail al-Shimari, whose name is the lead name in this long-running case of Al Shimari v. CACI. And he is an educator.

JJ: It seems important to recognize and acknowledge that there are human beings here. I want to ask you to ground us, because some of our listeners weren’t even born. Ground us on the substance of the charges here, and maybe why is this the only lawsuit to make it this far?

KG: So this case stems out of what for many of us, or those of us of a certain generation, really is a historic event, in the negative sense. And that is the torture of Iraqi detainees at a US-run detention center in Baghdad, in Iraq, during the US invasion of Iraq.

At Abu Ghraib, especially during the time from fall 2003 until early 2004, there was a conspiracy to torture and otherwise subject Iraqi detainees to cruel, inhuman and degrading treatment. And that abuse, that horrific abuse, was documented in photos.

And those photos came out, the world saw them in 2004, and really “shocked the conscience,” which is a term that we often use in the law, but here it was true, for the entire nation and the world, when we saw naked, hooded, Iraqi detainees in human pyramids, being threatened with dogs, being subjected to sexual assault and degradation and humiliation, being held in contorted, painful positions, shackled to bed frames and walls.

And all of this, military generals investigated, they found that this was done, in large part, to “soften up” detainees, to make them pliable and ready to speak when they went into interrogation.

Now, at the time of the US invasion of Iraq, the US went in far too quickly, and with not enough resources, and with really no plan for the counterinsurgency that followed. So in the summer of 2003, the US started detaining Iraqis en masse. And so there were thousands and thousands of Iraqi detainees.

CounterSpin (8/18/23)

And in order to understand who they were even picking up, the US set up a number of detention centers, and they didn’t have enough trained interrogators, and they also didn’t have enough trained translators within the US military. So they outsourced those functions to private companies, and one of them was CACI, or C.A.C.I., a private government contractor from Virginia.

And CACI was hired, and paid tens of millions of dollars, to augment and support the US interrogation services. So CACI was hired to find so-called resident experts—qualified, trained interrogators to work in Iraq, and to supervise those interrogators who were working with the US military.

But what we found out, as the torture scandal broke and the military investigations happened and more information came out, is that CACI sent over unqualified interrogators, in many cases, and did not provide the kind of oversight or supervision that was required, and that was particularly required at Abu Ghraib, where there was a breakdown in the command structure within the military that allowed the kind of torture and abuse in those notorious photos to occur.

So that’s the big picture of what happened. And the abuse in that time was also inflicted upon the plaintiffs, Suhail, Asa’ad and Salah, who were detained in that end-of-2003, early-2004 time.

JJ: It seems worth just lifting up, as a point of information, these were not people who were charged or convicted of any crime, the detainees that we’re talking about, many of them, at Abu Ghraib, right?

KG: Correct. The individuals in this case, and I’ve represented individuals in two other cases, one that settled back in 2012 and one that was dismissed back in 2009. And of those 338 plaintiffs I’ve represented across those three cases, zero were ever charged with a crime. But I also want to be very clear that, even if one were charged with a crime, torture is always unlawful.

JJ: Right. Well, the case is landmark, in part just because of the way that it names contractors as responsible parties. It’s always been their argument, right, that they’re just private actors following orders from the US, and the US has immunity, so we do too, right? That’s part of what’s important about this.

KG: That’s precisely right. Over the 16 years of litigation, CACI has filed at least 15 motions to dismiss. And whether they’ve invoked Derivative Sovereign Immunity or the Political Question Doctrine or the Government Contractor Defense or the Law of War Immunity, or most recently and throughout trial, the so-called Borrowed Servant Defense—all of these boiled down to essentially one argument, which is, we were working with the US military, and anything we did was because they were overseeing it. And if they were overseeing it, they should have any responsibility, not us. We were just, essentially, following orders.

Democracy Now! (4/7/16)

Now, the conduct at issue in this case—and we have clear decisions from the Fourth Circuit saying as much in our long litigation—the conduct at issue is unlawful. We’re talking about torture. We had plead war crimes, we’re talking about cruel and inhuman and degrading treatment. These are violations of US domestic criminal law, and they are also violations of US-signed treaties, including the Convention Against Torture and the Geneva Conventions.

And so, this is not conduct that the military could order anyone, whether it’s soldiers or contractors, to do. This is unlawful, illegal. So CACI’s defense fails, insofar as this is not a lawful order that they could have ever received from the military.

But, additionally, CACI was hired to supervise its own employees. This is a for-profit corporation that hired employees at will. So, unlike an enlisted person at Abu Ghraib, the CACI employees could quit at any time, and notably, some did, and one even did, more than one, because of what they saw happening at Abu Ghraib. So this corporation should be held accountable for its own employees’ conduct.

And that’s precisely, after 16-and-a-half years, what a jury in Alexandria, Virginia, found to be the case two weeks ago when they gave down a verdict against CACI and for our plaintiffs.

JJ: I will say I’m disheartened by the relative quietness of media around the verdict. There has been some coverage, but I feel like I can say pretty confidently that had this case died in court, we would’ve never heard about it again.

But I’m also saddened by the accounts that I have seen: Virtually all of them use the phrase “over two decades ago.” And that, to me, is not a neutral tag. It’s a linguistic wink that says, “Why are we still talking about this?” But as you’ve noted, the case has taken this long because CACI has resisted it for this long, right?

KG: That is absolutely the case. The plaintiffs filed back in 2008, and our plaintiffs, to this day, the 20-year time period doesn’t erase or make this historic. They are living every day with being an Abu Ghraib torture survivor. They still suffer from nightmares, from flashbacks, and talking about Abu Ghraib is not something that’s easy for them to do.

The fact that this case went to trial not once but twice, and that the plaintiffs had to tell their account, tell about their suffering, their humiliation, more than once, it wasn’t easy. And to remember the kinds of details, some of it is seared in their memory, and others, of course, over 20 years is less clear than it used to be. But the nightmares and the mental harm has continued to this day, and it should not be something that is relegated to the history books at all.

And one of the things I’d note: There weren’t many photos shown during trial, but there were a few photos shown during trial, and there were a couple of jurors who appeared to be on the younger side. And when those photos came up, particularly for one of the younger jurors, who may not have seen this on the cover of the paper each day, as those of us did back in 2004, there was absolute shock. There was absolute shock. I mean, these photos were shocking for everyone, but the accounts seemed to be unknown. And that is not something that should be permitted to happen.

And that’s part of why, despite the difficulty, our plaintiffs have brought this case forward, and stayed with it throughout all of this time, so that it is not forgotten. And it is so that what was done in our name, for me as a US citizen, is also not forgotten. And they want to be sure that this never happens to anyone else again. So to the extent that corrections haven’t been made, whether by the US military or by CACI, to ensure that their employees or soldiers do not ever, ever treat detainees, or humans, in the way that the Iraqi men, women and children who were held at Abu Ghraib were treated, that’s what this case is also about.

JJ: Well, what do you make of the “few bad apples” line, which literally has appeared in some of the journalistic accounts that I’ve seen, that these were some rogue CACI employees, and it’s wrong to hold the organization liable for that?

KG: CACI, again, by its contract, had an obligation to oversee its employees, and it had staff on site precisely to do that. Also, the staff in Iraq was in daily contact with the staff back in Virginia, and some of the staff in Virginia traveled to Abu Ghraib over this period of time.

And so, whether we’re talking about a contractor at Abu Ghraib and allegations of torture, or frankly, other kinds of corporations, you have an obligation to look down your supply chain. And that, here, that supply chain is your employees, and you have an obligation to ensure that they are abiding by the terms of their contract, and the obligations that you as a corporation are putting forward that you will comply with. And that included following federal and international law. And that means no torture, no cruel and inhuman and degrading treatment.

JJ: I sort of resent the fact, though I understand it, that it’s being reported solely as a lawsuit, and not a human rights crisis. And the coverage as a lawsuit means, first of all, we see a note of monetary outcomes: These folks are getting millions!

And then, also, I see the Washington Post quoting CACI, saying CACI employees say, “None of them laid a hand on detainees.” Well, “laid a hand on,” like, I don’t know, that sounds like language you got from somewhere else.

But, also, plaintiffs are described as “saying” they were restrained, “claiming” they were tortured. There’s always this degree of difference. And I wonder, I wish, in some ways, we could move it outside of just the lawsuit framework, and talk about the human rights crisis that Abu Ghraib actually presents and presented for the United States.

Katherine Gallagher: “The jury found not that our clients ‘claimed’ that they were tortured, but that our clients were subjected to torture.”

KG: I appreciate that comment and that perspective. And just a few reactions to the language that you cited: What’s important here is, our clients testified in court, under oath, and there were findings made by a jury, factual findings against clear law. And Judge Brinkema gave the jury their legal instructions against which to apply facts.

So the jury found not that our clients “claimed” that they were tortured, but that our clients were subjected to torture, or cruel and inhuman and degrading treatment. The jury found them credible, as did General Taguba when he investigated Abu Ghraib back in 2004.

And, in fact, one of our clients in this case was someone who provided an account of abuse already, back in late 2003. And at that time, General Taguba also found the report by him and other Iraqi detainees credible.

So these are not mere allegations at this point. We have a jury verdict, and the jury awarded each plaintiff $3 million in compensatory damages, and $11 million each in punitive damages against CACI.

And that punitive damages award is saying that it wasn’t a few rogue employees, but it was a corporation that had responsibilities that it didn’t fulfill. The fact that that punitive damages award was meeting the amount that CACI was paid through their contract at Abu Ghraib, I really think sends a very clear message.

JJ: Finally, and perhaps you’ve answered it, but what are your hopes for the impact of this verdict, and what would you maybe say to other attorneys, frankly, who are working on years-old cases that might never lead to such an outcome?

KG: First, on the outcome, we certainly had a big victory, and it was a real validation of our clients, of what was done to them, and of their quest for justice. So that, again, I am very grateful for.

We will be facing an appeal; CACI has made that clear. So the litigation is not yet over, and our clients have not been given the monetary compensation. But, indeed, there already has been a real recognition for them by the jury, which mattered a lot, I have to say. It mattered a great deal to them, to know that they were heard and that they were believed.

In terms of the bigger picture of what this means, I do think that these cases are important. They may be difficult and, frankly, they also may be lost, but raising the challenges, and bringing the facts to the forefront, and putting harm with proper labels, so that those pictures Abu Ghraib are understood as torture, which means causing severe physical or mental harm, intentionally. And that is what happened to our plaintiffs.

CACI was part of a conspiracy to do that to our plaintiffs. And, indeed, they may not have been the ones to literally shackle our plaintiffs, but they gave instructions and encouragement to have our plaintiffs so mistreated and so harmed.

And I think that that message of challenging injustice, and for our clients to try and regain some of their agency, some of their dignity, it’s important. And I’m gratified that in this case it ended in a victory, but I still think it’s worth bringing cases, even if that’s not the outcome.

JJ: All right, then. We’ve been speaking with Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights. They’re online at CCRJustice.org.

Thank you so much, Katherine Gallagher, for joining us this week on CounterSpin.

KG: Thank you so much.

This content originally appeared on FAIR and was authored by Janine Jackson.

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