MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, a bluegrass party with new grass Nashvillization, Lee Michael Demsey and more. But first, President Obama formally marked the end of combat operations in Iraq this week, but in many ways, the war is not over. Not only are there still 3,000 U.S. troops there to maintain security, but the most shameful chapter of the conflict, the prisoner abuse scandal at Abu Ghraib, remains an open wound and an open court case for many of the victims.

MR. KOJO NNAMDIAlthough several low-ranking military personnel were court marshaled for their crimes, the private military contractors involved have raised various legal defenses and say they are in effect immune from prosecution. The victims say that contractors too should be held accountable. This week, a federal appeals court agreed to review the case. Joining us to discuss it in our studio is Ruth Wedgwood, professor of international law and diplomacy and director of International Law and Organization at Johns Hopkins School of Advanced International Studies. Ruth Wedgwood, good to see you again.

PROF. RUTH WEDGWOODNice to see you, Kojo.

NNAMDIJoining us by phone from New York is Baher Azny, the legal director of the Center for Constitutional Rights. Baher Azny, thank you for joining us.

MR. BAHER AZNYThank you for having me.

NNAMDIIt's a conversation you, too, can join by calling 800-433-8850. Do you think that private contractors working in a warzone should be exempt from prosecution? 800-433-8850. You can send email to kojo@wamu.org, join us at kojoshow.org or simply send a tweet, @kojoshow. Baher, what was the original case filed on behalf of the victims back in 2008?

AZNYThere were -- actually, there was a case filed in 2004 called Saleh v. Titan on behalf of Abu Ghraib torture victims. These cases were separately brought in two courts, one in Virginia and one in Maryland on behalf of victims of contractor torture and abuse. One case was against a contracting company called L-3 Services, another against the contracting company called CACI. Each were hired to provide translation and interpretation and some interrogation services. But in -- both sets of contractors were fairly heavily involved in grotesque detainee abuse arising in some cases to torture.

NNAMDIHow did this case come about?

AZNYSo after we filed the initial case in 2004, which was originally brought to the attention of co-counsel in Michigan by a survivor of the Abu Ghraib abuse scandals who had immigrated to the U.S. He told the story to this Arab-American lawyer who initially was quite surprised to hear it because all of the Abu Ghraib photos had not yet been revealed. So he was hearing stories about, you know, beatings and sort of grotesque sexual abuse and was quite surprised to hear maybe even a little bit skeptical.

AZNYAnd then within weeks, the Abu Ghraib photos came out confirming these accounts. So then, after that case was filed, the number of other victims came forward and wanted to bring cases and trying to achieve accountability for the abuses they suffered.

NNAMDIOn behalf of the victims, your organization challenged the contractor's claim of immunity. What was the result?

AZNYIn the earlier case in 2004, a court appeals in the District of Columbia held that the cases couldn't go forward because based on the factual record in that case, the court believed that the contractors were integrated into the military chain of command and therefore shouldn't face a lawsuit under state, you know, basically state wrongful misconduct law. And they created a doctrine called battlefield preemption in which the court largely said, you know, the law of tort, which is the law governing, you know, harm to others, misconduct in the civil context, that that should have no place in the battlefield.

AZNYAnd based on that battlefield preemption doctrine, the appellate court in our case in the 4th Circuit Court of Appeals held that our claims couldn't go forward. We then asked...

NNAMDISo you're revisiting it with an appeal.

AZNYWe're revisiting it by asking the full court, these -- what's called the en banc court of the 4th Circuit, all 14 judges have agreed to review the decision of the original three-judge panel, and so we'll have a fresh hearing on whether or not this kind of immunity should apply.

NNAMDIAnd that will take place in January. Baher Azny is the legal director at the Center for Constitutional Rights. He joins us by phone from New York. In our Washington studios is Ruth Wedgwood, professor of international law and diplomacy and director of International Law and Organization at Johns Hopkins School of Advanced International Studies. Ruth Wedgwood, is the fact that the court of appeals agreed to review a case like this significant?

WEDGWOODWell, oftentimes, you will have a review of the entire circuit if there's some anticipation that there might be a difference between the three-judge panel that heard this particular case and others on the -- who are on the larger circuit. But by itself, it doesn't tell you how it's going to come out. It may be, if you're a psychologist, an indication that the court recognizes that the underlying social problem that the case addresses is one of significance.

NNAMDIHow difficult is it to pursue legal action in American courts when the events took place on foreign soil?

WEDGWOODOr doing any -- I used to be a prosecutor for a good part of my life under Rudy and others in New York and doing any case abroad is difficult. Doing something in the context certainly of combat, this is a prison which is a little bit different. But in combat where the decisions are nanosecond, you don't have a running tape where you have a voice recording narrative by the combatant as to why he's doing what he's doing.

WEDGWOODThese are very tough cases to prove. And I guess the other factor that weighs in is that people don't, in general, want to create a doctrine that would be so inhibiting that it might lead to soldiers themselves not taking prudent decisions in their own self-defense. However, a guy who's in custody in your total control, that's a rather different context than it is if it's a split-second battlefield decision.

NNAMDIAnd this is not a problem only for the United States, is it? This is a problem that the United Nations also have?

WEDGWOODWell, one of my pet goat issues, which I have not yet solved, is what to do about peacekeepers. And what we've seen over and over again, Jane Holl Lute, who's now the deputy secretary of homeland security, used to be concerned about this too, and she worked for the U.N. Is that the troops that are brought in on robust peacekeeping missions as in the Congo? Often, they're badly trained. There's a very bad chain of command.

WEDGWOODAnd when terrible things happen, as with the sexual offenses in Southern Congo -- Eastern Congo, excuse me, the troops are sent home. They're not disciplined by the U.N. There's no jurisdiction by the International Criminal Court, and there's no question as to how carefully and robustly the U.N. itself follows the supposed discipline that might be imposed back at home and South Asia or some place or elsewhere.

NNAMDIBack to these specific cases, Baher. Is there any dispute as to the involvement of these contractors in the abuse at detention centers?

AZNYNot, you know, there are military investigations, for example, the Taguba report implicates employees of the cocky contracting company and suggest that they were very much part of the conspiracy with low-level officers to undertake some pretty horrific acts. And so, you know, we haven't gotten to the stage of the proceedings in which we've been able to put forward factual evidence because, you know, the...

NNAMDIWell, one of issues is that a lot of the legal defenses that have been raised have made it difficult for you to review things like the contracts themselves, correct?

AZNYYeah. I think one important question to help resolve this case is what do the contracts themselves say. So each of the contracting defendants takes the position that, you know, we, the plaintiffs, are trying to second-guess military commands or military judgments, and our position very much is: No, we take the military commands as a given, which prohibited this kind of torture and abuse.

AZNYAnd we would like to look at the contracts to demonstrate, as we think they would, that the contracts obligated these contractors to make sure that no abuse of detainees occurred, so that we can show as a factual matter there was grotesque abuse and torture that that violated -- the contracts that violated their obligation to abide by the laws of war both independently and arising out of the contracts, and that therefore they're liable under, you know, fairly elementary legal principles.

NNAMDIAnd, of course, it's my understanding that, as you mentioned, the military has done its own investigation of these cases. Baher, has the Department of Justice moved to prosecute?

AZNYNo, they have not moved to prosecute in these cases. I think for some of the reasons Prof. Wedgwood mentioned about the reach of the criminal jurisdiction of U.S. courts and the, you know, the absence of strong criminal legislation as opposed to what we say as fairly basic state civil law that that would, you know, permit the Justice Department to prosecute beyond a reasonable doubt.

NNAMDIHere is Allan in Philadelphia, Pa. Allan, you're on the air. Go ahead, please.

ALLANYes. My concern was that the contractors actually acted to terrorize the Iraqi people both in Abu Ghraib and throughout the country, and so therefore should they be tried in a military tribunal or even under the terms of the NDAA detained by Iraq until the end of hostilities.

NNAMDII'll ask Ruth Wedgwood to deal with that. Any idea of...

WEDGWOODWell, hostilities now are officially over. We're out of there, for better or for worse, and somewhat for the worse for the MEK people who are in danger in Ashraf. But, in general, I guess, my own personal view, this is just me...

NNAMDISure.

WEDGWOOD...talking, lady of light and law professor. My -- and forgive me to my co-panelist. In general, I think, criminal jurisdiction is a better venue for this because you want to prevent this stuff within terrorem penalties. We now have a criminal statute that applies to contractors who are acting in direct support of the Defense Department. There's a proposal on the Hill with Sen. Leahy to extend it to contractors who are not quite so directly in support of DOD, but are nonetheless deployed as the larger part of the larger mission.

WEDGWOODAnd that gives you the -- if you trust the Department of Justice at any particular instance, the -- an instant, the ability to have a kind of a common sense sorting mechanism early on. One of the challenges in civil ligation is it's very hard to sort out fish from fowl cases, and you can chew up a lot of airtime money and angst and the court's time, too, in endless discovery in motion bringing. So in some ways, the rough and dirty methods of criminal law, particularly for deterrents, may be better.

NNAMDICare to comment on that, Baher?

AZNYAnd, yeah, I would. I actually couldn't quit hear everything Professor Wedgwood was saying, but first, I took the caller's comment as sort of tongue-in-cheek criticism of the NDAA, that is the claim that we should be able -- foreign countries should be able to detain U.S. citizens under this kind of suspicion for the end of hostilities. But to address what I think was Professor Wedgwood's points, I don't think they're mutually exclusive criminal jurisdiction and civil liability.

AZNYThat's the baseline operation in our legal system in a range of cases. And I don't think these cases are all that -- need to be all that challenging to bring. I think a lot of it will turn on already existing documents that have been released by the Defense Department, eyewitness testimony, including the eyewitness testimony of some individuals who have been court-martialed for engaging in the very conduct we're challenging against the contractors.

AZNYAnd, you know, I think the Defense Department and the U.S. government would not claim that these contractors were acting, you know, pursuant to Defense Department authorization. There are, in fact, regulations passed by the Defense Department warning contractors that they have to abide by their contracts, by the laws of war, and they don't get the kinds of protections that the military would get because the military is subject to a whole different regime.

NNAMDIAs a matter of fact, I'm glad you brought that point up. Allan, thank you very much for your call. Ruth, just listening to what Baher just brought up, we've said the contractors raised numerous legal defenses including immunity from prosecution because the events took place during wartime in a war zone, something known as battlefield immunity. What would be the legal basis for this kind immunity for private contractors?

WEDGWOODWell, again, on the side of criminal law, there really isn't and ought not to be any immunity for soldiers and for now -- as we now -- contractors acting in direct support of DOD missions. The uniform code of military justice, the laws of war, the whole training regime before somebody is deployed are meant to imbue professional ethos, which is supposed to prevent the worst abuses.

WEDGWOODAnd it may well be that the way we're deploying contractors in general is fairly wastrel in that we just call up DynCorp or Blackwater or somebody else and say, send us live bodies, and don't necessarily sufficiently monitor the training regime that those people go through. And that's -- I'm a big prevention person as much as a remedy-after-the-fact person. But there is this hole, again, that Sen. Leahy has noted that if somebody's not deemed to be directly in support of DOD, they're not subjected currently to federal criminal law.

WEDGWOODThe issue on the civil side is that, in general, though the U.S. itself often makes so-called ex gratia payments, payments out of grace to people who have been harmed by battlefield errors or misconduct, we -- there's no regime in place internationally or nationally pursuing the U.S. as a civilian victim of a wartime mistake for damages. So if the Federal Tort Claims Act precludes suing the U.S. government, should you be able to sue contractors?

NNAMDICongress started looking into accountability for private contractors because of an incident involving Blackwater back in 2007. Remind us about what happened.

WEDGWOODWell, there was the terrible convoy incident, where they drove into a public square and who knows what triggered their excited utterance, but some Blackwater guards shot up the place and killed a whole mess of civilians. And I think the extent of the damage and its public -- the public occasion and the absence of any obvious fact pattern that could be taken as a good-faith error made it quite scandalous and something that, I think, people felt they had to react to.

NNAMDIBaher, five Blackwater guards were charged with manslaughter in that incident. Why did battlefield immunity not apply in those cases?

AZNYIn the first instance, I don't think there is such a thing about -- such a thing like battlefield immunity for private contractors. I think if there were -- if they -- these individuals were soldiers, they could be charged in a military process for war crimes. But the military process has no jurisdiction over civilians, so they're in the civilian system. Likewise in this situation, these civilian contractors, we believe, should be subject to the basic rules governing civilian conduct, and any other civilian who, you know, beats up a prisoner would be subject to civil liability in a U.S. court.

AZNYAnd there is no such doctrine of a battlefield immunity simply because the abuse happened in a foreign country, where armed conflict was occurring, particularly as, I think, Professor Wedgwood acknowledged, this was a prison outside of an actual combat zone, and these actions were taken against sort of, you know, defenseless civilian prisoners.

NNAMDIRuth Wedgwood, we're almost out of time, but the Military Extraterritorial Jurisdiction Act was the first attempt to address issues of accountability for private military contractors. What do you think besides the Abu Ghraib case will continue to hunt us into the future? Are there other legal issues that are unresolved by that act even though the war is over?

WEDGWOODWell, I think the challenge is gonna be to figure out how to effectively prosecute those cases both under the existing MEJA, Military Extraterritorial Jurisdiction Act, that you mentioned and under the proposal that Senator Leahy has to cover all civilian contractors even if we're not working directly for DOD. Because with the downsized DOD and with the challenged State Department where people can't be forced to go abroad, oftentimes, the warm bodies you have to do these task are gonna be contractors who are on double pay but may or may not be appropriately trained.

WEDGWOODSo I would, I guess for human rights friends and military friends, urge as much attention to prophylactic measures to improve training and supervision as remedies after the fact when the tragedy has happened.

NNAMDIRuth Wedghood, the self-described night lady is a professor of international law and diplomacy and...

WEDGWOODYou're gonna get me in trouble.

NNAMDI...director of International Law and Organization at Johns Hopkins School of Advance and International Study. Thank you so much for joining us, Ruth.

WEDGWOODPleasure.

NNAMDIBaher Azny is the legal director of the Center for Constitutional Rights. Baher Azny, thank you for joining us.

AZNYThank you.

NNAMDIGonna take a short break. When we come back, our bluegrass party with Lee Michael Demsey and a lot more. I'm Kojo Nnamdi.