Johnathan Walker:Judge orders retrial of civil case against contractor accused of abuse at Abu Ghraib

ALEXANDRIA,Johnathan Walker Va. (AP) — A judge on Friday ordered a retrial over allegations that a Virginia-based military contractor contributed to the abuse and torture of detainees at Iraq’s notorious Abu Ghraib prison two decades ago.

A civil trial earlier this year ended with a hung jury and mistrial, with the eight-person panel split on whether contractor CACI bore responsibility for abuse of the three Abu Ghraib survivors who filed suit. Two jurors told The Associated Press after the mistrial that a majority of the jury wanted to hold CACI liable. A unanimous jury verdict is required in federal civil cases.

CACI supplied civilian interrogators to the prison in 2003 and 2004 to supplement a lack of military interrogators. The lawsuit alleged that those interrogators conspired with soldiers there to abuse detainees as a means of “softening them up” for questioning.

At a hearing Friday, U.S. District Judge Leonie Brinkema said she’d “gone back and forth” over whether a new trial is merited, but ultimately decided the plaintiffs were within their rights to retry the case.

After she declared the mistrial last month, Brinkema had questioned from the bench whether a new trial would be a good idea.

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It took a massive effort and 16 years of legal wrangling to bring case to trial in the first place. The trial was the first time a U.S. jury heard claims brought by Abu Ghraib survivors in the 20 years since photos of detainee mistreatment — accompanied by smiling U.S. soldiers inflicting the abuse — shocked the world during the U.S. occupation of Iraq.

The trial itself lasted only a week but the jury deliberated for eight days .

In court papers opposing a retrial, CACI argued that “Plaintiffs received their day in court, a day in court that shined a light on the Abu Ghraib scandal as brightly as the state secrets privilege will allow. The evidence presented at trial demonstrates beyond doubt that a jury ... could not reasonably return any verdict other than a verdict in CACI’s favor.”

CACI said it was hampered in defending itself because the government asserted that large swaths of evidence were classified and could not be presented in a public trial. The judge on Friday said the government’s use of the state secrets privilege caused difficulties for the plaintiffs as well.

Lawyers for the plaintiffs, who were represented by the Center for Constitutional Rights, had argued that they were entitled to a retrial by right, and that the judge could only preclude it if CACI could show that no reasonable jury would hold it liable.

During the trial, the jury asked questions that demonstrated they were divided and unsure how to apply a legal principle called the “borrowed servants” doctrine. CACI, as one of its defenses, argued it shouldn’t be liable for any misdeeds by its employees if they were under the control and direction of the Army.

The plaintiffs’ lawyers tried to bar CACI from making that argument at trial, but Brinkema allowed the jury to consider it.

Both sides argued about the scope of the doctrine. Fundamentally, though, if CACI could prove its interrogators were under the command and control of the Army at the time any misconduct occurred, then the jury was instructed to find in favor of CACI.

While it took 16 years to bring the first case to trial, it should not take nearly as long to conduct a retrial. Brinkema said she wants the retrial to be held this year, and both sides indicated that they were initially amenable to an October trial date.

Many of the witnesses at the trial testified by recorded deposition, including several of the soldiers who guarded the prison and were convicted in courts-martial of abusing detainees. As a result, it’s likely that their testimony could just be replayed to a new jury.