|
White House Turns Tables on
Former American POWs
LA Times
By David G. Savage
Times Staff Writer
February 15, 2005
White House Turns Tables on Former American POWs
# 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 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.
|