Outside Special Counsel Needed to Investigate Torture Abuses by Civilians, ACLU Says in First Letter to Attorney General Gonzales

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Contact: Media@dcaclu.org

WASHINGTON – Recently released government documents and Congressional hearings have made clear that high-ranking officials are too close to the detainee torture scandal to pursue an independent investigation, so a special counsel must be appointed to investigate and, if warranted, prosecute civilians for their actions, the American Civil Liberties Union said in a letter sent to Attorney General Alberto Gonzales today.

“Gonzales and other high-ranking government officials had important roles in the development of policies that paved the way for the abuses at Abu Ghraib and Guantánamo Bay,” said ACLU Executive Director Anthony D. Romero. “It is an inherent conflict of interest to have the Justice Department investigate matters in which he and Justice Department officials and attorneys were involved. Justice cannot be served without an outside special counsel.”

An outside special counsel is the only way to ensure that privates and sergeants are not the only ones held responsible for violations of the War Crimes Act, Anti-Torture Act, and other federal laws against torture, the ACLU said. Documents released through an ACLU Freedom of Information Act litigation show that top level officials removed protections against certain abusive detention and interrogation practices.

In its letter, the ACLU pointed out that no one with the authority to prosecute civilians for violations of federal criminal laws prohibiting the torture or abuse of prisoners has investigated the full scope of potential criminal acts by civilians. The military has begun the process of investigating, and when appropriate, prosecuting servicemembers, but the military cannot prosecute civilians. Similarly, several congressional committees and the Inspector General of the Justice Department either have or are investigating some aspects of detainee torture, but the House and Senate Judiciary Committees have declined to use their subpoena powers and none of the investigators have prosecutorial powers.

Last week, Gonzales recused himself from the Justice Department investigation into the leak of an undercover CIA officer’s identity, because he gave advice about it to White House personnel. Gonzales should not only personally step aside from torture investigations on the same grounds, the ACLU said, but assign an outside special counsel because the Justice Department was also closely involved in developing interrogation and torture policies.

The letter — the first correspondence between the ACLU and the new attorney general — outlines how the ongoing revelations of detainee abuses meet a three-pronged criteria, laid out by the Justice Department, for the appointment of a special counsel:

1. The requirement that “criminal investigation of a person or matter [must be] warranted,” is met by the changes in U.S. policy on prisoner treatment, and the documented abuses that resulted. According to an August 1, 2002 memo by the Justice Department, acts that did not cause pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” were not technically “torture.” A December 30, 2004 memorandum by the Justice Department-issued one week before Gonzales’ confirmation hearing– rejected and replaced this analysis. However, that narrow definition of torture was applied for over two years. Federal documents have revealed acts like soaking a prisoner’s hand in alcohol and setting it on fire, sodomizing a prisoner with a bottle, and putting lit cigarettes inside a prisoner’s ear: all of these acts would not apparently constitute “torture” under the earlier Justice Department memorandum.
2. The requirement that there is a “conflict of interest” is met by the fact that Gonzales, numerous Justice Department and Defense Department officials, and many others helped formulate policies to skirt international laws. In a January 25, 2002 memorandum to the president, Gonzales said that a “positive” reason for denying Geneva Conventions protection to Al Quaeda was that it would “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act.” In other words, he advised the president to block Geneva Convention protections as a way to safeguard against war crimes prosecutions.
3. Finally, the requirement that “Under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter,” is met. The images of the abuses at Abu Ghraib are still etched in the national memory, and despite oversight hearings, inquiries from members of Congress, and litigation under the Freedom of Information Act, the American public still does not have a complete picture on the extent and causes of torture and abuse.

“Gonzales’s involvement in the torture scandal precisely meets the three-pronged criteria,” said Christopher E. Anders, an ACLU legislative counsel. “The public deserves answers and accountability, and Gonzales has demonstrated that he and the Justice Department are too wrapped up in the problem to be able to provide that.”