ACLU Calls on Gonzales to Appoint Special Counsel on Torture Abuses; Full Criminal Investigation of Civilian Officials Must Be Free of Political Pressure

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Contact: Media@dcaclu.org

WASHINGTON – The American Civil Liberties Union today called upon senators to insist – prior to voting on the nomination of Alberto Gonzales as attorney general – that he commit to immediately appoint an outside special counsel to investigate and prosecute any criminal acts by civilians in the torture or abuse of detainees by the U.S. Government.

“In America, no one is above the law, even those at the highest level of government,” said Christopher E. Anders, an ACLU legislative counsel. “Senators should demand now that Gonzales show the American people that he is beholden not to the political sways of the White House, but to the interests of truth and justice, by committing to the immediate appointment of an outside special counsel to investigate any and all criminal conduct by civilians in the use of torture and abuse against prisoners.”

At his confirmation hearing, Gonzales failed to adequately answer inquiries from both sides of the aisle about the Bush Administration’s policies on the torture and abuse of prisoners and detainees. The ACLU said that the appointment of an outside special counsel – with full investigatory and prosecutorial powers – is the only way to ensure that all civilians who violated federal laws against torture will be held responsible

In a letter distributed to senators, the ACLU said that a three-prong test outlined in the Justice Department’s own regulations regarding the appointment of an outside special counsel has been met. The prongs include:

1. The requirement that “criminal investigation of a person or matter [must be] warranted,” is met by the clear record of high-level government officials changing U.S. policy on the treatment of prisoners. This record was highlighted by the example of the Justice Department’s December 30, 2004 memorandum that rejected and replaced an August 1, 2002 memo that narrowly interpreted “torture” under the Anti-Torture Act. Incredibly, acts such as burning, electric shocks, prolonged intense noise, amputation of a finger or similar disfiguring harm, use of stress positions, or prolonged exposure to heat or cold would not have fit within the meaning of “torture” as explained by the August 1, 2002 memorandum. The new memorandum, finalized just one week before the Gonzales confirmation hearing, expands the range of actions considered criminal. In short, while U.S. laws had not changed, the Department’s interpretation of them had. Therefore, the ACLU said, it is likely that criminal acts occurred under the looser interpretations in effect for more than two years.
2. The requirement that an “investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department,” is met by the fact that then White House counsel Gonzales, numerous Justice Department and Defense Department officials, along with Vice President Cheney’s counsel and top officials of the CIA reportedly were intimately involved with the formulation of one or another of an array of policies withdrawing protections against torture or abuse of prisoners. Gonzales and Justice Department attorneys cannot fully and fairly investigate a matter in which he and other high-level Administration officials will necessarily at least be subject to questioning.
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.

“It is time for the Senate to demand accountability and responsibility,” Anders added. “A small number of enlisted men and women in the military and a few low-ranking military officers should not be the only individuals held responsible for the torture and abuse that repulsed all Americans, if civilians were also engaged in criminal conduct. The American people deserve to know the truth, and justice must be served.”