ACLU Says New Detainee Report Does Not Absolve Senior Officials of Responsibility for Abuses; Special Prosecutor Needed

March 10, 2005 12:00 am

Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States


WASHINGTON — Despite aggressive claims to the contrary by the Defense Department, an investigation into detainee torture by American military personnel released today did not and likely could not have absolved senior-level Pentagon officials of responsibility for the widespread abuse of men and women in American military custody, the American Civil Liberties Union said.

“Military investigations can only look down,” said Anthony D. Romero, ACLU Executive Director. “An impartial and comprehensive investigation of senior-level Pentagon officials would require the appointment of a special prosecutor by the attorney general.”

The Navy investigation was conducted by Vice Adm. Albert T. Church, the Navy’s inspector general, who, according to the former head of the Navy’s legal corps, would have had limited authority to actively investigate criminal conduct by his superiors.

The only way criminal conduct by senior-level civilian officials at the Pentagon could be properly assessed, Romero said, is through the appointment of a special prosecutor by the attorney general. Without such an appointment, criminal conduct by civilian political appointees at the Pentagon will forever go unpunished.

Last week the ACLU filed a civil complaint on behalf of detainees who were abused in Iraq and Afghanistan against Defense Secretary Donald Rumsfeld, alleging that he is legally responsible because he failed to exercise his command responsibility to prevent and stop abuse and torture. If military commanders have reason to know of illegal conduct by their subordinates, and they do not take adequate measures to stop it, they are liable for their subordinates’ conduct under Supreme Court legal precedent.

“Secretary Rumsfeld authorized techniques that were clearly unlawful,” Romero said. “What’s worse is that he violated his command responsibility by ignoring the reports of torture that came to his attention in 2003 and 2004. Turning a blind eye to the torture that was going on under his command is not a sufficient legal or moral excuse.”

Although it often uses language that appears to play down the substance of its findings, the Church report does criticize a number of “missed opportunities” by officials to learn from American military abuses in past conflicts. In addition, it references a general failure to take into account the possibility that such abuses would even occur and is critical of “ambiguities” in current military interrogation procedures that obscure “command oversight” of the treatment of detainees.

The ACLU also took issue with the scope of the inquiry. The report based its conclusions on a survey of only 70 criminal cases against U.S. military personnel, even though documents obtained by the ACLU suggest the number of incidents is far higher.

The release of the investigation’s findings coincides with the disclosure today of 800 additional pages of military documents obtained by the ACLU in its Freedom of Information Act lawsuit seeking information on torture by United States military personnel overseas. The new documents reveal:

  • A formal agreement between the CIA and Pentagon on how to hide “ghost detainees” from Red Cross officials, which is a significant violation of international law. Several documents refer to ghost detainees who died in custody, including one whose body was taken away by a taxi driver paid by interrogators.
  • A culture of “releaseophobia” among military personnel charged with administering detentions in Iraq, which left many innocent men and women languishing in prison.
  • A sworn statement by a military intelligence official that the vast majority of detainees in Iraq were “peripheral bystanders” and that “perhaps only one in ten security detainees were of any particular intelligence value.”

The documents obtained by the ACLU are online at

Details of the ACLU’s lawsuit against Defense Secretary Rumsfeld can be found at

Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.

Learn More About the Issues in This Press Release