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."