Government priorities shift away from tortured POWs

Guy Hunter is a patriot. He's defended the United States government in the jungles of Vietnam, the skies of Iraq, and the torture chambers of Saddam Hussein.

And he defends it today. Even as his lawyers fight to get this 1991 Gulf War POW compensation for his suffering, Mr. Hunter can sympathize with his government's choice to spend $1 billion in seized Iraqi funds rebuilding that shattered nation, rather than paying him and 16 fellow servicemen for the brutality they suffered in its prisons.

What he can't countenance is the message that decision sends to future US enemies: that those who torture American POWs won't have to pay.

This summer, a federal district court awarded substantial damages to 17 prisoners of war tortured in Iraq: Hunter was to receive $32 million. When lawyers filed the case in April 2002, Iraq was the heart of the "axis of evil," its assets frozen in US banks. By the time the judge's decision came down in July 2003, Iraq was a land of faltering hopes and ruined power plants. It was also, as it remains, a fledgling democracy the US wished to rebuild - much like Germany after World War II.

To that end, President Bush had in March seized $1.7 billion in frozen Iraqi assets and deposited them in the US Treasury to help with Iraq's rebuilding. When Hunter and his fellow plaintiffs came to claim their awards in July, the money had already been spent. Taking no chances on their claim, the Justice Department is now suing to nullify the POWs' award.

Filed under a controversial 1996 law, their case is intriguing in its legal complexities - but even more so for its ethical ones. At its moral root is the question: Is a greater good served in using the money to supply broadly the basic needs of Iraqis and pave the way for a stable peace, or, by handsomely compensating 17 Americans for war crimes committed against them, in sending a message to the world that the torture of soldiers will not be tolerated?

In a briefing earlier this month, White House press secretary Scott McClellan emphasized the administration's condemnation of the torture, but argued that the frozen assets were "required for the urgent national security needs of rebuilding Iraq."

Hunter maintains that deterring potential torturers is an equally urgent national security need. "I hate to say it," he says, "but there are always going to be wars. If we don't send a message that, 'You can't do this and get away with it,' what's the incentive to treat [prisoners] correctly the next time around?"

History offers no clear lesson. On one hand, the US has not opened its treasury to families of American Jews whose relatives were murdered by Hitler's SS. It did, though, spend $1.4 billion to rebuild Germany with its Marshall Plan, the largest reconstruction of an enemy land in recorded history.

The US has also decided not to extend aid to Timothy McVeigh's Oklahoma City victims, or to survivors of the 1993 World Trade Center bombing. Neither has it historically compensated the descendants of its slaves or native peoples. It has, however, made restitution to Japanese Americans interned in the US during World War II.

American society is the most litigious on earth. The nation's legal system puts individual price tags on the hardships of its disabled workers, the pain of its clergy sexual-abuse victims, the suffering of the families of its Sept. 11 dead. Why not also on the injuries of its tortured soldiers?

In fact, the government does offer veterans injured in combat, including Hunter and many of his fellow POWs, medical services and disability pay. But the issue has long been a touchy one. Next month, Mr. Bush is expected to sign into law a monumental change in military disability pay, bringing veterans into line with other federal workers, who, if injured, receive separate disability and retirement checks. (For the past hundred years, injured vets' disability pay has typically been deducted from their retirement pay.)

Still, speaking on the POWs' case at his Nov. 6 briefing, Mr. McClellan repeated five times: "There is simply no amount of money that can truly compensate these brave men and women for the suffering that they went through at the hands of Saddam Hussein's brutal regime."

The statement rang hollow to plaintiffs. Such qualms, they knew, had not prevented Bush in May from setting aside $300 million - from the same seized Iraqi assets - to pay a court award to civilians used as human shields in the 1991 war.

Judge Richard Roberts - who heard the case that awarded the POWs their money as well as the one that stripped them of it - mentioned that apparent double standard in an October ruling. Though he found that the timing of the original case and the Bush appropriation decided the matter in the government's favor, Judge Roberts went out of his way to express his reservations that not to pay the POWs at all, "despite their sacrifice in the service of their country, seems extreme."

Ethicists and historians are similarly ambivalent. Joseph Pastore, a professor of corporate ethics and public policy at New York's Pace University, calls the case "a choice between right and right." Ideally, he says, the US government would take responsibility for fulfilling both promises.

In January 1991, on the second day of the Gulf War, Hunter's reconnaissance plane was shot out of the sky; he and his copilot parachuted into the middle of an Iraqi infantry division. In the custody of intelligence officers, they boarded a vehicle bound for Baghdad. It was there that the abuse began.

"They had on the radio, and they were beating us in time with the music," he says. "When their shift was done one bunch would say goodbye by way of hammering us with their fists and boots, then a new set would come and beat us again by way of hello. I think we wore out six sets of beaters that first day." Hunter estimates he lost consciousness four times.

He then spent 45 days in Baghdad prisons, starving, freezing, beaten, dehydrated, questioned apparently at random, subjected to mock executions, threatened with amputations, and paraded on Iraqi television to deliver a false confession. To keep sane, he made lists of the things he'd do when he got home. He lingered on the image of sitting at the breakfast table with his wife, sipping coffee with half-and-half.

When he got too weak to stand, nearly blind from infection, he summoned mental pictures of his wife and three children and said goodbye. He said his confessions, and gave himself to God.

Within a week, he was in the hands of the International Red Cross, on his way home.

Then came the rough years. After a hero's welcome - parades and steak dinners - Hunter found himself back home tense and fearful, uncommonly strict with his children. Medication for posttraumatic stress disorder and depression helped somewhat, he says, and over the years, it's gotten easier to calm the fears. But he still sometimes wakes up screaming, hearing the heels of his jailers' shoes on the floor of that long, cold hallway, and the awful jangling of their keys.

Hunter and his fellow servicemen sued Mr. Hussein's government under a controversial US civil law that allows citizens to hold governments of terrorist states accountable for terror acts against Americans. Since its passage in 1996, the law has had an uneasy tenure. Successfully used only four times in military cases - most recently in that of 241 marines killed in the 1983 bombing of their Beirut headquarters - it has been the focus of an ongoing struggle between Congress and the State and Justice Departments over sovereign immunity, or what happens when the findings of US courts conflict with foreign policy. John Norton Moore, a former counsel on international law to the State Department who's consulting in Hunter's case, argues his clients have gotten caught in the political crossfire.

Government lawyers are "fighting an old fight," he says, "and because of that they have closed their eyes to the extraordinary national security interests of the United States in deterring the torture."

Officials at the Justice and State departments, which are overseeing the administration's response to the POWs' case, decline to speculate on the case's symbolic significance to potential torturers. However, legal experts argue that the primary legal deterrent to torture isn't civil litigation - it's the fact that perpetrators and their governments can be tried and punished under international law.

The Justice Department is now seeking to overturn the POWs' case. If it fails, plaintiffs' lawyer Tony Onorato says, the men might still hope to collect damages someday, when the bill for Iraq's reconstruction has been paid and Iraqi oil money starts to wash up on US shores.

There's some precedent here too: A few US prisoners of war have received small sums for their injuries through national courts and international bodies. This past summer a US court awarded World War II POWs up to $10,000 each in taxpayer funds, and some of the plaintiffs in Mr. Moore's own suit received up to $10,000 from the United Nations Compensation Commission for injuries in the Gulf War.

Moore waves off such comparisons. "You cannot seek to deter torture by giving somebody the price of a used car," he says.

Though Hunter is primarily concerned with the money's symbolism to hostile nations, he concedes his share of the award - coincidentally, $1 million for every year he served - would come in handy. With it, he says he'd help start a fund for other POW-MIA families, and pay off his house and his kids' college bills.

But as he tells his children - two of whom are already enlisted and a third who plans to be - nobody goes into the military for the money. "It's a calling," he says. "It's the kind of life that says you are living a real life, if that makes sense."

Bruce Norton didn't serve with Hunter in Iraq - he got the shrapnel in his gut in Vietnam - but the retired major and author of eight books on Marine Corps history is of two minds about the POWs' case. "It is, in my world, the responsibility of the government to take care of those people who fight in its name," he says. On the other hand, nobody enlists expecting to sue for injuries sustained in wartime.

A tactical officer at The Citadel, Major Norton teaches American and military history. Both, he says, are full of instances when the country's laws have lagged behind its moral obligations.

"Ask any black man or woman who has followed the historical trail from Reconstruction to the present how long it has taken even to approach parity. This is a darn slow process," Norton says.

"But in the end," he says, "our moral obligations are what set us apart from our enemies."