Would the Abu Ghraib Guards Be Deemed Agents or Independent Contractors?
Nevertheless, the actions of guards and interrogators – such as those who worked at Abu Ghraib prison — are very different from those of doctors. For one thing, if civilians were indeed employed to perform tasks involving national security, it seems hard to believe that they were not in theory — even if not in practice — under the direct control of either military or civilian U.S. government officials. For another thing, if prisoners argue that the contractors were “agents” of the U.S. government, the contractors themselves may end up agreeing! Why? Because, as noted in my previous column, if the contractors want to claim immunity from suit in their private capacity under the Government Contractor defense, then by definition they are claiming that the government closely controlled their actions. Either the government loses this argument, or the private contractors do – and the plaintiffs win either way. At some point, a court would have to make choice about who to believe. If the co
