Census trial -Is objecting to torture a crime?

"As everyone knows, soldiers and civilian contractors at the Abu Ghraib prison committed criminal offenses," says New York Times editor, Andrew Rosenthal. So why have no Abu Ghraib contractors faced prosecution? And why is a Glasgow woman facing criminal charges for objecting to the involvement of Abu Ghraib contractor CACI in Scotland's census?

Barbara Dowling will be tried in Glasgow Sheriff Court on Tuesday 25 September, accused of committing a criminal offence under the Census Act 1920. She allegedly refused to fully complete her census form last year in protest at the involvement in Scotland's census of a British subsidiary of US defence contractor CACI International.

Staff working for CACI International played a part, along with US military personnel and other contractors, in the torture of prisoners at Abu Ghraib. This is common knowledge and is beyond reasonable dispute, despite assertions to the contrary by Scotland's Registrar General Duncan Macniven and by John Swinney, Cabinet Secretary for Finance and Sustainable Growth in the Scottish Government.

It is also common knowledge - and common ground between the US authorities and their critics - that the US sanctioned interrogation methods that most of us would call torture. Official investigations of the Abu Ghraib scandal were focussed in part on whether "confusion" had led to techniques that were officially sanctioned for use in Afghanistan and at Guantánamo being used in Iraq, where prisoners were supposed to benefit from a fuller interpretation of the Geneva Conventions.

This question ought to be of little interest to anyone outside the US, since all these techniques are unacceptable under international law as it is ordinarily understood.

CACI ceased sending its staff to work at Abu Ghraib in autumn 2005 and says it no longer employs interrogators. But intelligence analysts employed by CACI continue to work at Bagram - the scene of some of the worst crimes known to have been committed against prisoners by the US.

Eleven low-ranking US soldiers were convicted by court martial in 2004-6 for offences connected with the Abu Ghraib torture scandal, though the word "torture" didn't appear on their charge sheets.

Abuse was widespread and systemic at Abu Ghraib. But officers serving there emerged from the investigations almost untouched, and civilian contractors have so far got off scot-free.

Just one officer - Lt. Col. Steven Jordan - was court-martialled. He was acquitted of all charges directly relating to the torture and convicted only of disobeying an order not to discuss the abuse investigation. The army authorities subsequently dismissed the verdict and sentence - as US military law allows them to do - and instead issued Jordan with an administrative reprimand. A couple of other senior officers have also received administrative reprimands.

None of the civilian staff who worked at Abu Ghraib have faced prosecution. Yet civilians played a crucial part in interrogations at Abu Ghraib. Testimony linking civilian contractors to abuse was given during the court martial of soldiers who had served at Abu Ghraib.

Former Abu Ghraib prisoners have been trying for years to bring lawsuits against CACI in the US courts. They say that they were subjected to electric shocks, repeated beatings, sleep deprivation, sensory deprivation, forced nudity, stress positions, sexual assault, mock executions, humiliation, hooding, isolated detention and prolonged hanging from the limbs. They were eventually all released without charge. CACI has been trying for years to block the proceedings, claiming that its status as a government contractor makes it immune to this kind of legal action.

In May this year a Federal Appeals court in Richmond, Virginia rejected arguments that the case against CACI should be dismissed. But this doesn't mean that CACI's bid for immunity has been defeated. It just means - unless the Supreme Court intervenes - that CACI will have to argue for immunity as the cases proceed.

The crumbs of evidence left from the torture at Abu Ghraib may, if followed diligently, lead to the highest levels of the US military and into the White House itself. The US authorities have so far taken care not to follow the trail diligently. The court martials of Abu Ghraib soldiers were neatly structured to disrupt the trail. The soldiers sought to defend themselves by saying that they were following orders; the military prosecutors naturally sought to diminish the significance of those orders. The soldiers were in a poor position to challenge this manoeuvre. CACI is rather more strongly placed.

The decision of the Virginia court earlier this year means that CACI, in order to establish its immunity, will need to present evidence of its integration with US forces beyond that already contained in the files submitted by the former prisoners. CACI executives may possibly be hoping that this process has sufficient potential for embarrassing former members of the Bush Administration and senior military figures that, somehow, the process will be brought to a halt.

But even if the lawsuits go ahead, and even if the former prisoners eventually win, CACI's only punishment will be to hand a little cash over to the torture victims. On the other hand, if Barbara Dowling is convicted under the Census Act next week, she will chalk up an entry on her criminal record.

Scots law is apparently powerless to prevent a company involved in torture from profiting from our census. At the same time, Scots law apparently insists that it is a crime for a conscientious individual to refuse to put ink in the required spaces on our census forms.

The Scottish legal system has been handed a fine opportunity to make a fool of itself. Perhaps it will decline the invitation.

Support Barbara in court

Please come along to support Barbara Dowling in court:

10am Tuesday 25 September at Glasgow Sheriff Court