Go to Original
White House Turns Tables on Former American POWs
By David G. Savage
The Los Angeles Times
Tuesday 15 February 2005
Gulf War pilots tortured by Iraqis fight
the Bush administration in trying to collect compensation.
WASHINGTON - The latest chapter in the legal history of torture is being
written by American pilots who were beaten and abused by Iraqis during the 1991
Persian Gulf War. And it has taken a strange twist.
The Bush administration is fighting the former prisoners of war in court, trying
to prevent them from collecting nearly $1 billion from Iraq that a federal judge
awarded them as compensation for their torture at the hands of Saddam Hussein's
regime.
The rationale: Today's Iraqis are good guys, and they need the money.
The case abounds with ironies. It pits the U.S. government squarely against
its own war heroes and the Geneva Convention.
Many of the pilots were tortured in the same Iraqi prison, Abu Ghraib, where
American soldiers abused Iraqis 15 months ago. Those Iraqi victims, Defense
Secretary Donald H. Rumsfeld has said, deserve compensation from the United
States.
But the American victims of Iraqi torturers are not entitled to similar payments
from Iraq, the U.S. government says.
"It seems so strange to have our own country fighting us on this,"
said retired Air Force Col. David W. Eberly, the senior officer among the former
POWs.
The case, now being appealed to the U.S. Supreme Court, tests whether "state
sponsors of terrorism" can be sued in the U.S. courts for torture, murder
or hostage-taking. The court is expected to decide in the next two months whether
to hear the appeal.
Congress opened the door to such claims in 1996, when it lifted the shield
of sovereign immunity - which basically prohibits lawsuits against foreign
governments - for any nation that supports terrorism. At that time, Iraq
was one of seven nations identified by the State Department as sponsoring terrorist
activity. The 17 Gulf War POWs looked to have a very strong case when they first
filed suit in 2002. They had been undeniably tortured by a tyrannical regime,
one that had $1.7 billion of its assets frozen by the U.S. government.
The picture changed, however, when the United States invaded Iraq and toppled
Hussein from power nearly two years ago. On July 21, 2003, two weeks after the
Gulf War POWs won their court case in U.S. District Court, the Bush administration
intervened to argue that their claims should be dismissed.
"No amount of money can truly compensate these brave men and women for
the suffering that they went through at the hands of this very brutal regime
and at the hands of Saddam Hussein," White House Press Secretary Scott
McClellan told reporters when asked about the case in November 2003.
Government lawyers have insisted, literally, on "no amount of money"
going to the Gulf War POWs. "These resources are required for the urgent
national security needs of rebuilding Iraq," McClellan said.
The case also tests a key provision of the Geneva Convention, the international
law that governs the treatment of prisoners of war. The United States and other
signers pledged never to "absolve" a state of "any liability"
for the torture of POWs.
Former military lawyers and a bipartisan group of lawmakers have been among
those who have urged the Supreme Court to take up the case and to strengthen
the law against torturers and tyrannical regimes.
"Our government is on the wrong side of this issue," said Jeffrey
F. Addicott, a former Army lawyer and director of the Center for Terrorism Law
at St. Mary's University in San Antonio. "A lot of Americans would scratch
their heads and ask why is our government taking the side of Iraq against our
POWs."
The POWs' journey through the court system began with the events of Jan. 17,
1991 - the first day of the Gulf War. In response to Hussein's invasion
of Kuwait five months earlier, the United States, as head of a United Nations
coalition, launched an air attack on Iraq, determined to drive Iraqi forces
from the oil-rich Gulf state. On the first day of the fighting, a jet piloted
by Marine Corps Lt. Col. Clifford Acree was downed over Iraq by a surface-to-air
missile. He suffered a neck injury ejecting from the plane and was soon taken
prisoner by the Iraqis. Blindfolded and handcuffed, he was beaten until he lost
consciousness. His nose was broken, his skull was fractured, and he was threatened
with having his fingers cut off. He lost 30 pounds during his 47 days of captivity.
Eberly was shot down two days later and lost 45 pounds during his ordeal. He
and several other U.S. service members were near starvation when they were freed.
Other POWs had their eardrums ruptured and were urinated on during their captivity
at Abu Ghraib.
All the while, their families thought they were dead because the Iraqis did
not notify the U.S. government of their capture.
In April 2002, the Washington law firm of Steptoe & Johnson filed suit
on behalf of the 17 former POWs and 37 of their family members. The suit, Acree
vs. Republic of Iraq, sought monetary damages for the "acts of torture
committed against them and for pain, suffering and severe mental distress of
their families."
Usually, foreign states have a sovereign immunity that shields them from being
sued. But in the Anti-Terrorism Act of 1996, Congress authorized U.S. courts
to award "money damages ... against a foreign state for personal injury
or death that was caused by an act of torture, extrajudicial killing, aircraft
sabotage [or] hostage taking."
This provision was "designed to hold terrorist nations accountable for
the torture of Americans and to deter rogue nations from engaging in such actions
in the future," Sens. Susan Collins (R-Maine) and George Allen (R-Va.)
said last year in a letter to Atty. Gen. John Ashcroft that urged him to support
the POWs' claim.
The case came before U.S. District Judge Richard W. Roberts. There was no trial;
Hussein's regime ignored the suit, and the U.S. State Department chose to take
no part in the case.
On July 7, 2003, the judge handed down a long opinion that described the abuse
suffered by the Gulf War POWs, and he awarded them $653 million in compensatory
damages. He also assessed $306 million in punitive damages against Iraq. Lawyers
for the POWs asked him to put a hold on some of Iraq's frozen assets.
No sooner had the POWs celebrated their victory than they came up against a
new roadblock: Bush administration lawyers argued that the case should be thrown
out of court on the grounds that Bush had voided any such claims against Iraq,
which was now under U.S. occupation. The administration lawyers based their
argument on language in an emergency bill, passed shortly after the U.S. invasion
of Iraq, approving the expenditure of $80 billion for military operations and
reconstruction efforts. One clause in the legislation authorized the president
to suspend the sanctions against Iraq that had been imposed as punishment for
the invasion of Kuwait more than a decade earlier.
The president's lawyers said this clause also allowed Bush to remove Iraq from
the State Department's list of state sponsors of terrorism and to set aside
pending monetary judgments against Iraq.
When the POWs' case went before the U.S. Court of Appeals for the District
of Columbia Circuit,, the three-judge panel ruled unanimously for the Bush administration
and threw out the lawsuit.
"The United States possesses weighty foreign policy interests that are
clearly threatened by the entry of judgment for [the POWs] in this case,"
the appeals court said.
The administration also succeeding in killing a congressional resolution supporting
the POWs' suit. "U.S. courts no longer have jurisdiction to hear cases
such as those filed by the Gulf War POWs," then-Deputy Secretary of State
Richard L. Armitage said in a letter to lawmakers. "Moreover, the president
has ordered the vesting of blocked Iraqi assets for use by the Iraqi people
and for reconstruction."
Already frustrated by the turn of events, the former POWs were startled when
Rumsfeld said he favored awarding compensation to the Iraqi prisoners who were
abused by the U.S. military at Abu Ghraib.
"I am seeking a way to provide appropriate compensation to those detainees
who suffered grievous and brutal abuse and cruelty at the hands of a few members
of the U.S. military. It is the right thing to do," Rumsfeld told a Senate
committee last year.
By contrast, the government's lawyers have refused to even discuss a settlement
in the POWs' case, say lawyers for the Gulf War veterans. "They were willing
to settle this for pennies on the dollar," said Addicott, the former Army
lawyer.
The last hope for the POWs rests with the Supreme Court. Their lawyers petitioned
the high court last month to hear the case. Significantly, it has been renamed
Acree vs. Iraq and the United States.
The POWs say the justices should decide the "important and recurring question
[of] whether U.S. citizens who are victims of state-sponsored terrorism [may]
seek redress against terrorist states in federal court."
This week, Justice Department lawyers are expected to file a brief urging the
court to turn away the appeal.
-------
Jump to today's TO Features:
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.)
Print This Story
E-mail This Story