March 10, 2005
SENATOR EDWARD M. KENNEDY QUESTIONS ADMIRAL CHURCH ON DETAINEE ABUSE
FOR IMMEDIATE RELEASE CONTACT: Laura Capps / Melissa Wagoner (202) 224-2633 March 10, 2005
The entire world continues to wait for signs that the Administration takes seriously its moral and legal responsibilities to eliminate torture and abuse.
The need for a full investigation and full accountability is enormous. The American people deserve answers about the unlawful and counterproductive conduct their government has engaged in. They deserve to know when and under whose authority the abuse started, why it was kept secret for so long, and why we had to learn about it from the media. They deserve to know why our government did not respond in a proper manner to the early serious complaints made by the Red Cross. They deserve to know what orders and guidelines on interrogations were given, and how those policies originated. Most important, they deserve an ironclad assurance from the White House, the Defense Department, and the Justice Department that this abuse is no longer going on in any prison or detention facility, anywhere, under American control.
The report by Vice Admiral Albert T. Church III on his long-awaited Review of Department of Defense Detention Operations and Detainee Interrogation Techniques was intended to be a comprehensive investigation into U.S. detention and interrogation policies and abuses committed against prisoners of war and other detainees.
Regrettably, Admiral Church's report falls short of the mark. Although it provides some useful information, it is notable more for what is absent than what it contains. It fails to address any of the abuses that occurred at Abu Ghraib, or the deaths of Afghan detainees at Bagram Air Base. It does not address the shocking reports by F.B.I. agents of abuse at Guantanamo -- reports which we've learned about only as the result of a private Freedom of Information Act lawsuit. It does not address the fact that through the bizarrely named process of "rendition", more than 100 U.S. detainees have been turned over to countries known to practice torture.
In addition, the report limits its focus to just those abuses that occurred while interrogations were being conducted, even though it elsewhere states that it is appropriate for military police to set favorable conditions for interrogation.
Most disturbing of all is the report's failure to address matters of "senior officer accountability." No questions were asked about the judgment of General Counsel William Haynes and the other civilian Pentagon officials responsible for putting the radical new interrogation polices in place. We all know now that the prisoner abuse scandal is not merely the responsibility of a "few bad apples," as the Administration initially claimed. Yet this report tells us little about who up the chain of command should be held accountable.
We continue to hear new reports about the alleged abuse and torture of detainees in U.S. custody. Last month, the Associated Press reported that one of the "ghost detainees" held at Abu Ghraib, Manadel al-Jamadi, died in November 2003 under C.I.A. interrogation. He had been suspended by his wrists, with his hands cuffed behind his back. According to one Army guard who was summoned by the interrogator to reposition al-Jamadi, blood gushed from his mouth "as if a faucet had been turned on" after he was released from his shackles. Two pathologists have concluded that the stress position used against al-Jamadi contributed to his death.
According to F.B.I. e-mails recently released in the litigation under the Freedom of Information Act, detainees at Guantanamo have been burned with lighted cigarettes, shackled hand and foot and made to lie in their own urine and feces, subjected to forced enemas, sexually humiliated by female interrogators, and terrorized by military dogs.
Such abuse is contrary to all that we stand for as Americans, and violates of our military's longstanding rules and traditions. How was it allowed to take place? Who is responsible?
Clearly, one responsible party is the Defense Department's General Counsel, William Haynes.
On November 27, 2002, Haynes advised Secretary Rumsfeld that it was both legal and humane to use such tactics as forced nudity, waterboarding to simulate drowninng, threats to kill a detainee's family members, and the use of military dogs to induce stress.
The following year, Haynes convened a Working Group to reassess and revise the Department's rules on the treatment of detainee and approve new interrogation tactics. In April 2003, the Haynes Working Group issued a report that twisted and diluted the definition of torture, claimed that military personnel who commit torture may invoke the defenses of "necessity" and "superior orders," and advised military personnel that they are not obligated to comply with the federal prohibition on torture.
In making these extreme claims, the Haynes Working Group relied in large part on the Justice Department's notorious Bybee Torture Memorandum -- a memo originally written in August 2002 by Jan Bybee, the Assistant Attorney General in the Justice Department's Office of Legal Counsel, and now a federal judge on the United States Court of Appeals for the Ninth Circuit. The Bybee Memorandum was written at the request of White House Counsel Alberto Gonzales and the C.I.A., and Harold Koh, Dean of the Yale Law School, has described the Bybee Memorandum as "perhaps the most clearly erroneous legal opinion I have ever read."
In December 2004, in the wake of outrage the memo provoked when it became public, the Justice Department repudiated the Bybee Memorandum and distributed a new memorandum on the definition of torture. It does not appear, however, that the Defense Department has repudiated the Haynes Working Group Report or provided any substitute guidance on the standards for the interrogation and treatment of detainees.
The unclassified portions of the Church Report do not explain how the clearly erroneous legal claims in the Bybee Memorandum became the official policy of the Defense Department. They do not explain whether any member of the Haynes Working Group raised objections to these claims, or how any such objections were addressed.
A major part of the problem is that many portions of the Church Report are classified. The security justification for classifying these portions is questionable. The Bybee Torture Memorandum and its repudiation by the Justice Department have been the subject of several public nomination hearings. There does not appear to be any legitimate security reason for concealing from public scrutiny the mechanisms by which interrogation policy was developed at the Defense Department.
The political reasons for shielding this information are all too clear. Senior officials in the Defense Department, the Justice Department, and the White House may well be implicated. Jay Bybee was confirmed by the Senate as a federal judge after his role in the issue became public. William Haynes has been re-nominated to the Fourth Circuit Court of Appeals, and the Administration wants his nomination to be acted on soon. I'm very concerned about the possibility that classification decisions have been made for the purpose of avoiding embarrassment to these officials, instead of protecting the nation's legitimate security interests.
Another problem with Church Report must be addressed. The report reiterates an all-too-familiar and none-too-persuasive defense of the Administration's detention and interrogation policies. It doesn't matter what specific policies may have been promulgated, according to this defense, because President Bush directed that all detainees must be treated humanely.
The reference is to a February 7, 2002 directive by President Bush that rejected the application of Geneva Convention protections to al Qaeda and the Taliban. The directive reaffirmed a previous order issued by the Secretary of Defense requiring that detainees "be treated humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
The President's directive did not apply to the C.I.A. It was carefully worded to apply only to the Armed Forces. After the Senate voted on the 9/11 Intelligence Reform Bill to prohibit all U.S. personnel, including the C.I.A., from engaging in cruel, inhuman and degrading treatment, the Administration insisted that this provision be eliminated in the Senate House conference on the bill. As a result, a huge loophole on abuse exists for the C.I.A.
As for the Armed Forces, the President's directive contained a "military necessity" exception that could be used to justify almost any abuse at all. Even worse, the term "humane" has never been adequately defined. During his recent confirmation proceedings, Alberto Gonzales told the Judiciary Committee that he would define "humane treatment" as "a basic level of decent treatment that includes such things as food, shelter, clothing, and medical care." His definition did not say anything about physical abuse, or how detainees should be treated during interrogation. Under this definition, detainees could be beaten day in and day out, so long as they received a meal, a roof, a robe, and a doctor.
The main purpose of the Justice Department's Bybee Memorandum and the Defense Department's Working Group Report was to expand the outermost boundaries of legal behavior. These memos made the existing legal prohibitions against torture and abuse null and void by defining them so narrowly as to be meaningless. It is unreasonable to cite the Presidential directive on humane behavior while ignoring the concerted efforts within the Administration to narrow the definition of inhumane behavior in a way that encourages abuses.
The Church Report provides some helpful information, but it is not the full and independent investigation the American people deserve. By refusing to act like the truth is important, the Administration is only making the crisis worse, further embarrassing the nation in the eyes of the world, and casting greater doubt on its commitment to the rule of law. We will not be able to move past this scandal as a nation until there is full independent investigation of all that has gone wrong in our detention and interrogation policy, and all the persons found responsible for this shameful policy are held accountable.