Should Judge Laurence Silberman have recused himself from a case involving alleged torture for which his buddies were ultimately responsible?

    On September 11, the US appeals court for the District of Columbia announced in a 2-1 decision that it was throwing out a lawsuit against CACI International and L-3 Communications Titan unit, which are being sued by Iraqi civilians for their alleged role in the torture and abuse at the Abu Ghraib prison. The companies provided interrogators at the prison at the height of the abuses there. The suit alleges that employees of the companies conspired with U.S. Army reservist Charles Graner, who was convicted of prisoner abuse on January 14, 2005 and is currently serving 10 years at Fort Leavenworth, and others to torture prisoners at Abu Ghraib. Several of the plaintiffs are Iraqis whose torture was depicted in graphic photos revealed over the past several years.

    The judge who wrote the majority opinion, Laurence H. Silberman, said: "During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted."

    The decision was swiftly celebrated by the private security industry. "The court's decision today is an important step toward resolving all legal matters regarding the company's mission and duties in Iraq," Jody Brown, executive vice president for public relations at CACI, said in a statement. "We have said from day one that these lawsuits are completely without merit and designed to pursue a political agenda."

    "This is big, and this is the kind of good news the contracting community needs," wrote one security contractor on his blog. "Precedents like this are what we need for further protection in the future for similar cases."

    Scott Horton, the great military and constitutional law expert wrote at Harper's that Silberman's opinion "reflects an amazing ignorance of or indifference to the basic concepts of the law of armed conflict:"

That law imposes a rule of absolute accountability on any persons fielded in a conflict, including contractors. It does not permit impunity or immunity. Not every aspect of the law of armed conflict is subject to private enforcement in the courts. But the prohibition on torture and cruel, inhuman, and degrading conduct is. The United States agreed in ratifying the Convention Against Torture that it would provide individuals who were tortured with legal recourse. The Alien Tort Statute, which formed the basis for the suit, has historically been used in federal courts to give foreigners compensation for claims of torture. But Judge Silberman decided to grant the contractors immunity from such suits.

    In a dissenting opinion, Judge Merrick B. Garland wrote:

The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison. At the current stage of the litigation, we must accept these allegations as true ... No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors - who were neither soldiers nor civilian government employees. Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government ... the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military's chain of command, and that such contractors are subject to civil liability.

    "Republican legal architects talk about a culture of accountability, but what they are introducing is actually a culture in which corporate surrogates torture, rape, and abuse with no consequences whatsoever," writes Horton.

    Beyond the legal issues here, which Horton deftly tackles, there is another issue: Judge Laurence Silberman himself. Silberman was appointed to the bench by President Reagan in 1985, but he had already made a name for himself in right wing political circles. Several journalists have dug deep into Silberman's alleged involvement with the arms-for-hostages deal, his exoneration of Iran-Contra figures Oliver North and John Poindexter and Silberman's role in promoting the career of Supreme Court Justice Clarence Thomas. For a good summary of Silberman's career see this excellent article by MIchele Goldberg on Salon.com. Goldberg writes:

[Silberman] has been near the febrile center of the largest political scandals of the past two decades, from the rumored "October surprise" of 1980 and the Iran-contra trials to the character assassination of Anita Hill and the impeachment of President Clinton. Whenever right-wing conspiracies swing into action, Silberman is there.

A veteran of the Richard Nixon and Ronald Reagan administrations who is close to Vice President Dick Cheney, Silberman has a reputation as a fierce ideologue who doesn't let his judicial responsibilities get in the way of his Republican activism.

    Judge Silberman also counts among his "close friends" former vice president Dick Cheney and former defense secretary Donald Rumsfeld - going back to their time in the Ford Administration. Rumsfeld was ultimately the official responsible for the abuses at Abu Ghraib at the time of the alleged torture of the plaintiffs in this case and Cheney was a major architect of the torture program. One of Bush/Cheney's key "torture lawyers," John Yoo, clerked under Silberman. Silberman also was chosen by President George W Bush to co-chair the Iraq Intelligence Commission. The 600+ page report Silberman's commission produced placed the blame for "intelligence failures" squarely on intelligence analysts and exonerated officials, like Cheney, who worked tirelessly to politicize intelligence to fit the White House's political agenda and its drive to invade Iraq. In June 2008, Bush awarded Silberman the Presidential Medal of Freedom. In 2004, former Nixon staffer Kevin Phillips said, "In the past, Silberman has been more involved with coverups in the Middle East than with any attempts to unravel them."

    Should Silberman have recused himself from this case?

    In 1994, the Supreme Court found that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994)] There are also these decisions: Courts have found that Section 455(a) of the Judicial Code, 28 U.S.C. §455(a) "requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned." [Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989)]. In Pfizer Inc. v. Lord, the Court stated that "It is important that the litigant not only actually receive justice, but that he believes that he has received justice." [456 F.2d 532 (8th Cir. 1972)]

    Do Silberman's relationships to Cheney and Rumsfeld whose policies ultimately led to the torture and abuse at Abu Ghraib constitute "reasonable questions" about his "impartiality?"