Who'll Have the Last Laugh?

By William Fisher

Andrew Rosenthal, the editor of the editorial pages for the New York Times, was practically ecstatic. He wrote: “Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.”

Likewise, Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.”

But will this case in fact provide “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court?”

Or will the Obama Administration, like the Bush lawyers before it, once again turn to the so-called “State Secrets Privilege” to get this case thrown out of court? Given its past performances, that would seem to be the logical culmination of this prosecution. Both the Bush and Obama legal teams have invoked “state secrets” on numerous occasions, proclaiming that revelation of any piece of the evidence in this case would subject the entire case to public scrutiny, thus revealing classified material whose disclosure would compromise U.S. national security.

As a result, we may find a human rights organization like the American Civil Liberties Union in the awkward position of defending contractors as they deny attempt to deny any public access to descriptions of activities the contractors will be desperate to suppress.

If the judiciary takes its customary position vis a vis the state secrets privilege, the contractors will have little to fear. Evidence needed to gain a conviction will likely never be heard in court because it is precisely the evidence that the government will contend compromises national security.

Meanwhile, legislative efforts to introduce changes into the state secrets law have come to a screeching halt, like just about everything in Congress at this time. There is unlikely to be any progress before the election.