ACLU Letter to the Senate Armed Services Committee Regarding the Need for Accountability on Government Abuse of Detainees

Honorable John W. Warner
Chairman
Committee on Armed Services
United States Senate
228 Russell Senate Office Bldg.
Washington, DC 20510-6050

Honorable Carl Levin
Ranking Member
Committee on Armed Services
United States Senate
228 Russell Senate Office Bldg.
Washington, DC 20510-6050

Re: Need for Accountability on Government Abuse of Detainees; Reports of Possible Promotion for General Ricardo A. Sanchez

Dear Chairman Warner and Senator Levin:

On behalf of the American Civil Liberties Union and its more than 400,000 members, we urgently request the Senate Armed Services Committee to take action to hold high level officials in charge of interrogation and detainee policies at Guantánamo Bay and other government facilities responsible for their actions.

We are concerned that the Administration is using a single provocative statement, made during debate on the Senate floor by Senator Richard Durbin, to obscure its own efforts to shield high level officials from any consequences for the policies they approved that led to serious abuse, including torture, of detainees in government facilities. We believe that the Senate’s focus should, instead, properly be directed at holding accountable those high level officials responsible for serious misconduct.

On June 14, 2005, Senator Durbin read the harrowing account provided by an FBI agent who personally witnessed at least two separate incidents of serious government brutality towards persons held by the government at Guantánamo Bay:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot on a fetal position to the floor, with no chair, food, or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. . . . On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

151 Cong. Rec. S6594 (June 14, 2005) (statement of Senator Durbin). This statement was a direct quote from an internal FBI email disclosed by the government to the ACLU in litigation under the Freedom of Information Act. Senator Durbin was correct in stating that government abuse or torture of individuals is inconsistent with the American commitment to the rule of law. Those involved in criminal acts must be held responsible.

The Administration has fueled controversy about the provocative nature of Senator Durbin’s comments in order to deflect attention away from its continuing refusal to hold those officials accountable. In fact, while privates and sergeants have been punished – in some cases, court-martialed–an array of high level officials involved in formulating detainee policies are being promoted.

The latest example, reported in yesterday’s New York Times, is the Administration’s reported consideration of General Ricardo Sanchez to head the Southern Command, a job that would require an elevation in rank from a three to a four-star general, and would require Senate confirmation. According to the article, Pentagon officials are considering this action now because they believe “”that the [abuse] scandal may be receding in the rear-view mirror of public opinion”” and that Senate confirmation is now more likely. T

he ACLU has urged Attorney General Alberto Gonzales to investigate General Sanchez for possible perjury before the Senate Armed Services Committee as a result of statements he made under oath denying that he approved specific abusive practices–statements that are flatly contradicted by government documents the ACLU received in its Freedom of Information Act case involving the abuse and torture of detainees.

During sworn testimony before your committee on May 19, 2004, Senator Jack Reed asked General Sanchez, who commanded the Combined Joint Task Force Seven (CJTF-7) in Iraq, whether he “”ordered or approved the use of sleep deprivation, intimidation by guard dogs, excessive noise and inducing fear as an interrogation method for a prisoner in Abu Ghraib prison.”” General Sanchez testified in response that he “”never approved any of those measures to be used in CJTF-7 at any time in the last year”” and that he “”never approved the use of any of those methods within CJTF-7 in the 12.5 months that I’ve been in Iraq.””

However, a document that the Defense Department released to us late in the afternoon of Friday, March 25, 2005 specifically contradicts General Sanchez’s testimony. In a memorandum signed by General Sanchez and dated September 14, 2003, General Sanchez ordered the immediate implementation of a policy signed by him, entitled “”CJTF-7 Interrogation and Counter-Resistance Policy.”” The policy approved by him for interrogation of “”detainees, security internees and enemy prisoners of war under the control of CJTF-7″” specifically approves “”significantly increasing the fear level in a detainee,”” “”adjusting the sleep times of the detainee (e.g., reversing sleep cycles from night to day),”” “”sleep management: detainee provided minimum 4 hours of sleep per 24 hour period, not to exceed 72 continuous hours.”” The policy also approves for detainees who are not prisoners of war (and sets up an individualized approval process for prisoners of war) additional techniques, including “”yelling, loud music, and light control: used to create fear, disorient detainee, and prolong capture shock. Volume controlled to prevent injury,”” and “”presence of military working dogs: exploits Arab fear of dogs while maintaining security during interrogation. Dogs will be muzzled and under control of MWD handler at all times to prevent contact with detainee.””

The September 14, 2003 memorandum signed by General Sanchez does not square with his testimony before the Senate Armed Services Committee. The memorandum also provides powerful evidence that at least some aspects of the FBI agent’s account of horrific abuse at Guantánamo – including deprivation of sleep and loud music – were not isolated incidents but part of an approved list of interrogation techniques that were permitted in many government facilities around the world.

For these reasons, we strongly urge the Senate Armed Services Committee to undertake an investigation of General Sanchez’s testimony, as well as in any illegal actions taken based on the September 14, 2003 memorandum. We also emphasize again the need for the Senate to urge the appointment of an outside special counsel. There is an obvious public interest in investigating and prosecuting all persons committing torture or abuse or conspiring to commit those crimes against persons being held by the United States.

You should not allow the Administration’s mischaracterization of a single sentence in Senator Durbin’s comments to distract you from your commitment to ensuring the government will follow the rule of law. A small number of enlisted men and women and a few low-ranking military officers should not be the only persons held criminally responsible, if civilians or top military officers also engaged in wrongdoing. Given the increasing evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an outside special counsel is clearly in the public interest.

Thank you for your attention to this matter, and we look forward to your response.

Very truly yours,

Gregory T. Nojeim
Acting Director

Christopher E. Anders
Legislative Counsel

Timothy H. Edgar
National Security Policy Counsel

cc: Members of the Senate