Re: Abuse of Prisoners at Abu Ghraib
Dear President Bush,
On behalf of the American Civil Liberties Union and its more than 400,000 members, we write concerning the serious abuse of Iraqi prisoners at Abu Ghraib prison. As the nation's foremost and largest civil liberties organization and as Americans, we are appalled by the conduct of armed forces personnel that resulted in sexual humiliation, degradation, and apparent threats of electric shock imposed on Iraqi prisoners, that are depicted in a series of photographs taken by soldiers. These pictures depict clear incidents of torture and other degrading treatment that are now the subject of a criminal inquiry.
While we welcome your apology on behalf of the United States, these abuses are not merely the depraved actions of a few poorly trained soldiers who were inadequately supervised. Rather, the abuses are the sadly predictable result of detention policies pursued by your Administration that have been developed and implemented in secret, and that do not honor the rule of law or American values. Our nation's apology to the Iraqi detainees, their families, and the nations of the world will ring hollow if it is not accompanied by a clear break with these detention policies, and only you, as Commander in Chief, have the authority to ensure that all members of your Administration are committed to reforming these detention policies.
At the end of this letter we make specific policy and legal recommendations about changes necessary to assuring that prisoner abuse does not occur at the hands of US soldiers. We urge you to seriously consider these recommendations.
The Need for Transparency in Detainee Treatment
The international community is now watching the United States with a skeptical eye to see whether our official apologies are sincere expressions of regret for appalling conduct, or calculated efforts at damage control from appalling images. If the United States is sincere, it will not only conduct this investigation in a transparent manner, it will open to outside scrutiny our treatment, including interrogation techniques, of all military prisoners, whether they are held as prisoners of war, unlawful combatants, or in some other status.
The American Civil Liberties Union and other groups, including Physicians for Human Rights, have been waiting for months for an adequate response to our Freedom of Information Act (FOIA) request for information about the treatment of prisoners in United States custody at Guantánamo Bay, Cuba and other military detention centers, as well as prisoners who have been turned over by the United States to countries that are known or suspected to practice torture. These questions do not call for disclosure of any properly classified information and should be answered fully - now.
An unwarranted cloak of secrecy continues to shroud the treatment of prisoners both in Iraq and elsewhere. The report on the abuses at Abu Ghraib by Major General Antonio M. Taguba remains classified secret - despite its widespread circulation - and, according to Secretary of Defense Donald Rumsfeld, numerous additional photographs and videos of detainee abuse exist but have not been released. The standards governing classification of government secrets prohibit the use of the classification system to cover up criminal conduct by government officials. The classification of the Taguba report and other materials plainly offends these guidelines.
Administration Policies That Shield Detainee Treatment from the Rule of Law
New Administration detention policies were first articulated in the war in Afghanistan. The policies include a deliberate disregard for the Geneva Conventions for the treatment of prisoners of war and other detainees based on flawed legal reasoning approved by you and by your White House counsel, Alberto Gonzalez. At a cabinet meeting in 2002 to resolve differences regarding the applicability of the Geneva Conventions to the war in Afghanistan with Taliban and Al Qaeda fighters, you decided to overrule the reported position of the Department of State regarding the application of the Conventions. At that meeting, you categorically determined that the Geneva Conventions applied neither to Taliban nor to Al Qaeda prisoners.
The decision not to allow individual tribunals to determine legal status for captured Taliban and Al Qaeda prisoners was a clear violation of Article V of the Third Geneva Convention. Article V provides for a "competent tribunal" - not a blanket policy decision by the Commander in Chief - to decide status whenever "any doubt" arises regarding a captured prisoner. The decision to label all prisoners held in Guantánamo Bay, Cuba, as "unlawful combatants" outside the protection of the Third Geneva Convention, without the benefit of any competent tribunal, was a clear violation of international law. Compounding this violation was a flawed decision that "unlawful combatants" not only did not enjoy the protections of prisoner of war status, but also were not covered by the Fourth Geneva Convention, which protects civilian internees who are held by military forces (including alleged criminals and other security detainees).
In a letter to the editor of the Washington Post published May 7, 2004, White House counsel Gonzalez reiterated the Administration's position that the Geneva Conventions did not cover unlawful combatants, arguing that such a policy preserved flexibility with regard to interrogations. While he cautioned that such prisoners would generally be treated in accordance with the protections of the Conventions, he also said those protections could be set aside when justified by "military necessity." It was not clear from the letter whether Mr. Gonzalez was stating a position that applied only with respect to the conflict with the Taliban and Al Qaeda, or also with respect to the Iraq conflict.
With respect to Iraq, Secretary of Defense Donald Rumsfeld stated in testimony before the Senate Armed Services Committee on May 7, 2004, that all prisoners in Abu Ghraib were covered either by the Third or Fourth Geneva Conventions, depending on their status. Under that view, which is how the International Committee of the Red Cross has long interpreted the Geneva Conventions, there is no such thing as the limbo status of "unlawful combatant" described by Alberto Gonzalez and other Administration officials. Rather, every detainee is treated either as a prisoner of war covered by the Third Geneva Convention or a civilian criminal or security detainee protected by the Fourth Geneva Convention.
It is unclear whether Secretary Rumsfeld's statement of this policy for the Iraq conflict - an entirely different policy than the policy that applies in Guantánamo Bay, Cuba - was understood by those who were in charge of the Abu Ghraib prison. According to the investigative report of General Taguba, soldiers were not instructed on the requirements of the Geneva Conventions. Copies were not available in the prison, nor made available to the prisoners, as the Conventions require. According to the Taguba report, Major General Geoffrey Miller, who led an assessment team to the Abu Ghraib prison in 2003, used Guantánamo Bay procedures (where a decision was made not to apply the Conventions) as a baseline for the Abu Ghraib facility.
Clear Abuse Resulted From Policies Approved at High Levels, Not Just Individual Misconduct
The Taguba Report makes clear that the Abu Ghraib prison lacked even the semblance of a properly trained staff or standard operating procedures. The lack of training (including training in the Geneva Conventions), severe overcrowding, grossly inadequate facilities, and insufficient staff facilitated the breakdown in discipline. The abuses at Abu Ghraib also resulted from the conscious adoption by Military Intelligence officers of techniques, reportedly including sleep deprivation through loud music and lights, and the withholding of basic necessities, such as clothing and mattresses, and very lengthy periods of solitary confinement in dark prison cells, apparently designed to facilitate interrogation of certain prisoners deemed to possess valuable information. These techniques were documented last year by the International Committee on the Red Cross, which warned officials that such techniques violated international standards.
While the conduct depicted in the photographs at the heart of the Abu Ghraib scandal appears to go beyond even these reportedly authorized interrogation techniques, the testimony described in General Taguba's report makes clear that last fall, Military Intelligence officers instituted changes in policy, approved by high Military Intelligence officials, including Major General Miller. These policies encouraged greater "coordination" of interrogations with Military Police officers so that MPs were asked to "set the conditions" for favorable interrogations. The authorized techniques reportedly included sleep deprivation, keeping prisoners naked, and other practices that are themselves abusive, may violate the Geneva Conventions, and plainly played a role in encouraging the even more serious abuses depicted in the photographs.
Major General Miller's policy changes were described in the Taguba report as an effort to make Abu Ghraib prison follow policies similar to those used in Guantánamo Bay, Cuba. The resulting abuse following General Miller's recommendations raises profound questions about the detention policies in place in Guantánamo Bay, and about the secrecy surrounding the detentions there.
Documented Behavior at Abu Ghraib Meets International and American Definitions of Torture
The conduct of Military Police officers captured in recently-released photographs, as well as some of the authorized techniques described in recent media reports, appear to meet the definition of torture under both international law and the United States criminal code. Sections 2340 and 2340A of Title 18 define torture as conduct occurring outside the United States by a United States national (including both soldiers and civilians, such as civilian contractors) that inflicts severe physical or mental pain and suffering. The threat of severe physical pain and suffering on the torture victim or another, or the use of techniques (including, but not limited to drugs) designed to profoundly alter the senses and the personality, are included within that definition. Extreme sleep deprivation and other extreme forms of humiliation, including sexual abuse, clearly fall within that definition. The United States definition of torture has been criticized as unduly restrictive by international human rights groups, yet many of these abuses are so serious that they clearly meet even that restrictive definition.
Torture is designated as a "Federal crime of terrorism" under United States law, see 18 U.S.C. § 2332b(g)(5), and, because it constitutes a "grave breach" of the Geneva Conventions, is also a "war crime." See 18 U.S.C. § 2441. Because torture is itself defined as both an act of terrorism and a war crime, it would be hypocritical for the United States government to apply one set of standards for its enemies and another for its own officials, contractors or others acting for the government. As the United States pursues terrorists around the world, it must firmly resist using weapons of state terror or it will lose all moral credibility and squander the necessary support of friendly governments.
The Need for Judicial Review
The Justice Department has consistently sought to shield the treatment of military prisoners, including those held at Guantánamo Bay, Cuba and those American citizens held in the United States, from judicial scrutiny. In arguments before the Supreme Court in April 2004, the Solicitor General's office strongly contested any role for the federal courts to oversee what is happening in Guantánamo Bay, and urged the Court to defer to the Executive's determinations in the enemy combatant cases without any meaningful review. The need for flexibility in prisoner interrogations was one of the government's key arguments for rejecting judicial review.
The Administration has refused to limit the jurisdiction of the military to its proper military role over captured prisoners in a combat zone, but instead has announced a "global war on terrorism" that permits the military detention of United States citizens and others who are arrested or detained as "enemy combatants" anywhere in the world. As a result, the treatment of prisoners in Abu Ghraib is relevant not only to American policy in Iraq, but to anyone, including American citizens arrested in the United States, who face possible designation as "enemy combatants."
In response to a question from one of the Justices about the fact that no hearing of any kind had been held to allow a designated "enemy combatant" to contest the government's allegations, the attorney for the government even suggested that the government's interrogator was a viable substitute for a neutral magistrate. The prisoner could attempt to explain his actions to the interrogator, the attorney maintained. The attorney also maintained that United States adherence to the Convention Against Torture and other international instruments was sufficient to prevent mistreatment of detainees even without any judicial review. Obviously, if the revelations of abuse at Abu Ghraib had occurred before the Supreme Court argument, the justices might have reacted very differently to these arguments.
ACLU Recommendations
Mr. President, we strongly urge you to take the following steps to make clear that you are committed to treatment of prisoners that is transparent, humane, and consistent with international and United States law:
1. All remaining photographs and information about the prison scandal should be immediately released without delay. The Taguba report should be immediately declassified. Investigators and others with access to information about detainee abuse should be instructed that the standards for classification of government documents forbid making secret the criminal conduct of government officials.
2. All remaining documents and other material requested by the American Civil Liberties Union pursuant to the Freedom of Information Act about the treatment of detainees and allegations of torture and other abuse should be provided immediately.
3. All prisoners in American military custody, including those prisoners in Guantánamo Bay, Cuba, must immediately be granted Article V hearings to determine their legal status under the Geneva Conventions.
4. The Administration should make clear that all prisoners, regardless of whether they are determined to be prisoners of war, unlawful combatants, or hold some other status, are covered by either the Third or Fourth Geneva Convention, as stated by Secretary Rumsfeld before the Senate Armed Services Committee. That policy should be made universal, as provided by Army regulations.
5. Aggressive techniques to ensure that soldiers guarding prisoners "set the conditions" for favorable interrogations, through the use of sleep deprivation, withholding of necessities (including clothing and mattresses), threatening physical harm to the prisoner or others, and other such abusive techniques should be immediately abandoned.
6. All military prisons should be open to unannounced inspections by the International Committee of the Red Cross and other appropriate international organizations. Hiding of detainees or other attempts to thwart Red Cross oversight should be investigated and punished. All military prisons should be inspected to assure that the facilities are operated in a safe, professional and humane manner. All military prisons should be provided with sufficient, trained staff and sufficient space to assure their safe and secure operation.
7. While guards and others should be forbidden from taking photographs for the purpose of humiliating prisoners, no blanket policy against the use of cameras by guards or others should be implemented (as has recently been done in Abu Ghraib). Rather, guards and others should be encouraged to photograph and otherwise document potentially abusive conditions or practices and promptly report them to their superiors.
8. The role of civilian contractors in interrogations or other detention matters should be thoroughly reviewed and clear procedures must be implemented to ensure proper training, supervision, and control by the Armed Forces, because the United States government remains responsible for their conduct.
9. The Administration should immediately review its policies regarding the limits of its military detention power over "enemy combatants" in order to articulate clear standards that limit such detentions to true war circumstances and do not have the effect of shielding government questioning of suspects from the criminal justice system or otherwise from judicial review.
Mr. President, while many Americans would like to believe that the abuse of Iraqi prisoners at Abu Ghraib involved only the horrific acts of a few poorly trained soldiers, the roots of the conduct can clearly be traced to a series of Administration policies designed to insulate the treatment of military detainees from public scrutiny, judicial scrutiny and ultimately from the rule of law. These policies must be changed.
Prisoner abuse is, unfortunately, not new and occurs in prisons throughout the world, including the United States. The risk of such abuse, however, can be lessened when appropriate safeguards are put in place. The ACLU's National Prison Project has the expertise and dedicated staff to suggest proper procedures to prevent abuse. We stand ready to meet with Administration officials to discuss how safeguards against prisoner abuse can be made meaningful.
Thank you for your consideration of our views.
Sincerely,
Anthony D. Romero
Executive Director
Laura W. Murphy
Director, Washington Legislative Office
Timothy H. Edgar
Legislative Counsel
cc:
Hon. Donald H. Rumsfeld, Secretary of Defense
Hon. Condoleezza Rice, National Security Advisor
Hon. Ted Stevens, Chairman, Senate Appropriations Committee
Hon. Robert C. Byrd, Ranking Member, Senate Appropriations Committee
Hon. John W. Warner, Chairman, Senate Armed Services Committee
Hon. Carl Levin, Ranking Member, Senate Armed Services Committee
Hon. Richard G. Lugar, Chairman, Senate Foreign Relations Committee
Hon. Joseph R. Biden, Ranking Member, Senate Foreign Relations Committee
Hon. Orrin G. Hatch, Chairman, Senate Judiciary Committee
Hon. Patrick J. Leahy, Ranking Member, Senate Judiciary Committee
Hon. Pat Roberts, Chairman, Senate Select Committee on Intelligence
Hon. John D. Rockefeller IV, Vice Chair, Senate Select Committee on Intelligence
Hon. C.W. Bill Young, Chairman, House Appropriations Committee
Hon. David R. Obey, Ranking Member, House Appropriations Committee
Hon. Duncan Hunter, Chairman, House Armed Services Committee
Hon. Ike Skelton, Ranking Member, House Armed Services Committee
Hon. Henry J. Hyde, Chairman, House International Relations Committee
Hon. Tom Lantos, Ranking Member, House International Relations Committee
Hon. F. James Sensenbrenner, House Judiciary Committee
Hon. John Conyers, Jr., Ranking Member, House Judiciary Committee
Hon. Porter J. Goss, Chairman, House Permanent Select Committee on Intelligence
Hon. Jane Harman, Ranking Member, House Permanent Select Committee on Intelligence