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Statement of Senator Patrick Leahy
 On Abuse of Foreign Detainees

October 1, 2004


Almost five months after learning of the atrocities that occurred at Abu Ghraib, several of the investigations into U.S. detention policies are now complete.  I commend Chairman Warner for his efforts to investigate this scandal, but he remains hampered by the leadership of his own party and an Administration that does not want the full truth revealed.  While the investigations provide new insight into how the abuses occurred, they frequently raise as many new questions as they answer.  Despite calls from a small handful of us who want to find the truth, Congress and this Administration have failed to seriously investigate acts that bring dishonor upon our great Nation and endanger our soldiers overseas.   

The Bush Administration circled the wagons long ago and has continually maintained that the abuses were the work of ‘a few bad apples.’  I have long said that somewhere in the upper reaches of the executive branch a process was set in motion that rolled forward until it produced this scandal.  Even without a truly independent investigation, we now know that the responsibility for abuse runs high up into the chain of command.  To put this matter behind us, first we need to understand what happened at all levels of government.  It is the responsibility of the Senate to investigate the facts, from genesis to final approval to implementation and abuse.  However, this Senate, and in particular the Judiciary Committee, continues to fall short in its oversight responsibilities. 

Democrats on the Judiciary Committee attempted in June to force the disclosure of policy memos on the treatment of detainees, but were defeated by a party-line vote.  Recently, a federal judge, recognizing the importance of public examination of such documents, ordered the Bush Administration to comply with freedom of information laws and release a list of all documents on the detentions at Abu Ghraib prison by October 15.  I commend this decision, but even that list would not tell the entire story.   

A recent Washington Post column addressed the Administration’s attempt to whitewash this scandal.  Jackson Diehl wrote, “Cynics will not be surprised to learn that senior military commanders and Bush administration officials are on the verge of avoiding any accountability for the scandal of prisoner abuse in Iraq and Afghanistan—despite the enormous damage done by that affair to U.S. standing in Iraq and around the world; despite the well-documented malfeasance and possible criminal wrongdoing by those officials; despite the contrasting prosecution of low-ranking soldiers.”  Allowing senior officials to avoid accountability sets a dangerous precedent.  It is time for Congress, even this Republican Congress, to do its job and take action.  We must send a message that no one in the chain of command—from an enlisted private at Abu Ghraib to the Commander-in-Chief—is above the laws of our Nation. 

The investigations completed thus far provide additional insight into how the prison abuses occurred, but their narrow mandates prevented them from addressing critical issues.  The reports by the Army Inspector General, Maj. Gen. George Fay, and Lt. Gen. Anthony Jones all suffered from structural limitations.  The Army IG report was designed as “a functional analysis” of operations, not an investigation into any specific incidents.  The Fay and Jones reports, tasked with reviewing the role of military intelligence at Abu Ghraib, were limited in scope to the military itself despite acknowledging that relationships between military intelligence, military police, and outside agencies were significant to the breakdown in order.  Overall, these investigations collectively suffered from a lack of scope and authority, leaving key inquiries into issues like contractor abuses and “ghost detainees” unexplored.   

The panel led by former Defense Secretary James Schlesinger was similarly limited to the role of the military and could not investigate the role of the CIA.  The Schlesinger panel had no subpoena power and lacked true independence.  Its loyalty to the Secretary of Defense is betrayed by its acceptance of a policy that is proving to be one of the root causes of this scandal.  In August 2002, Assistant Attorney General Jay Bybee wrote in a memo to White House Counsel Alberto Gonzales that, “While many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture.”  Alarmingly, in his recent testimony before the Senate Armed Services Committee, Dr. Schlesinger sounded more like an Administration official than an independent investigator.  His statement to the Committee that, “What constitutes humane treatment lies in the eye of the beholder” is something I would have expected to read in a memo from Jay Bybee, not the head of an “independent” commission.   

I could not disagree more with the statements of  Dr. Schlesinger and Mr. Bybee.  The Geneva Conventions and Convention Against Torture define humane treatment of prisoners, setting standards that protect our own soldiers when they are captured.  A number of State Department lawyers fought to protect these standards in early 2002 when the President broke with decades of policy and decided against providing the Geneva protections to terrorist suspects.  Military lawyers fought the same battle after Secretary Rumsfeld approved techniques for use at Guantanamo that are illegal under the Geneva Conventions. 

The recently released reports illustrate why an independent investigation is still necessary.  They brought us closer to the truth, but questions remain unanswered.  Despite its failings, the Schlesinger report refuted the Administration’s efforts to avoid responsibility and to minimize this scandal as the misdeeds of ‘a few bad apples.’  The report documents a failure of leadership by some at higher levels in the chain of command, as well as poor planning from the top and a great deal of confusion about which interrogation and detention practices were acceptable.  But the confusion was not caused solely by a lack of leadership.  In recent months we have learned that senior officials in the White House, the Justice Department and the Pentagon set in motion a systematic effort to minimize, distort and even ignore our laws, policies and agreements on torture and the treatment of prisoners.  The Schlesinger panel failed to follow the investigation to the highest levels of the Administration.   

Ultimately, what emerges from these reports is a striking contradiction.  The reports state that there was no official policy of abuse and they do not recommend punishment for high-ranking officials.  And yet, the reports show that decisions that were made by top officials, including the President himself, led to the abuses that occurred in the fields of battle.   

Piecing together the facts and findings of these reports with information contained in other official documents and press accounts, a timeline emerges that shows how edicts from Washington trickled down, crossed oceans, and migrated from the front lines on one continent to the next.   

In February 2002, President Bush signed a memorandum stating that the Geneva Conventions did not apply to members of al Qaeda and the Taliban.  That decision was taken at the recommendation of the Attorney General and White House counsel, and over the objection of the Secretary of State.   

Eight months later, in October 2002, with hundreds of prisoners captured in Afghanistan then being held at Guantanamo Bay, the Schlesinger report states that authorities at the base “requested approval of strengthened counter-interrogation techniques.”  In December of that year, according to the Fay report, Secretary Rumsfeld approved for use at Guantanamo techniques such as “stress positions, isolation for up to thirty days, removal of clothing and the use of detainees’ phobias (such as the use of dogs).”   Lawyers in the military reacted negatively, strenuously arguing that the use of such techniques was anathema to military tradition and would ultimately come back to haunt the armed services.  In January 2003, Secretary Rumsfeld rescinded his approval of the extreme interrogation techniques; new guidelines were issued in April 2003 from a Defense Department working group.   

The Fay report reveals, however, that despite the Secretary’s shift in policy, the methods he had authorized in December 2002 for use only at Guantanamo Bay quickly migrated to Afghanistan and other locations where our military is active.  As early as December 2002, reports General Fay, “interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation.”    

It was also in December 2002 that two prisoners in U.S. custody were killed.  Both deaths were ruled homicides by pathologists, but, at the time, the Army publicly attributed them to natural causes.  It was not until journalists saw copies of the death certificates, which had been given to the non-English speaking families of the deceased, that the truth about the fatalities came out.  In September, criminal charges were finally filed, twenty months after the deaths occurred.   

These deaths are deeply disturbing, but at least we know some of the details of the cases and can seek justice against the perpetrators.  A recent report by the Crimes of War Project uncovered an Afghan detainee’s death that was never reported up the military chain of command.  The detainee, Jamal Naseer, died in March 2003, allegedly after weeks of torture by American soldiers.  Because the Special Forces unit that reportedly controlled the detention facility failed to report the death, it was never investigated.  This incident is very troubling on its own, but, like so many other incidents we have discovered, it points to a much larger problem.  The U.S. Army Criminal Investigation Command received a tip about Naseer’s death earlier this year, but could not investigate the matter due to a lack of information.  Christopher Coffey, an Army detective based at Bagram air base, told the L.A. Times

“We’re trying to figure out who was running the base.  We don’t know what unit was there.  There are no records.  The reporting system is broke across the board. Units are transferred in and out. There are no SOPs [standard operating procedures] … and each unit acts differently.”  

The L.A. Times article illustrates a serious failure of leadership by the Department of Defense and the obvious shortcomings of allowing the Pentagon to investigate itself.  The Army Inspector General’s report, released in July, stated that the investigation’s team “that visited Iraq and Afghanistan discovered no incidents of abuse that had not been reported through command channels; all incidents were already under investigation.”  We now know this cannot be accurate.  What we don’t know is how many more deaths and cases of torture have gone unreported. 

As I stated before, the Schlesinger report agreed with Administration policy that detainees did not merit Geneva protections, a position with which I and many of those in uniform disagree.  The panel acknowledged, however, that the President’s policy of treating al Qaeda and Taliban detainees “consistent with the principles of Geneva,” was “vague and lacking.”  Even a government treating prisoners “consistent” with the Conventions would not rely on interrogation practices like the ones we have witnessed.  The techniques I just described, ones that were used in Guantanamo, Afghanistan, and Iraq are clearly illegal under the Geneva Conventions.  Secretary Rumsfeld and, later, Lt. Gen. Ricardo Sanchez, authorized the use of techniques that were contrary to both U.S. military manuals and international law.  Given this incredible overstepping of bounds, I find it incredible that the reports generated thus far have not recommended punishment of any kind for high level officials.   

Meanwhile, the CIA conducted its own set of interrogations.  The Fay and Schlesinger reports state that the CIA operated under a different set of rules, sometimes including the military and sometimes not.  The Fay report states that “the CIA’s detention and interrogation practices contributed to a loss of accountability and abuse at Abu Ghraib.”  The result:  further confusion among soldiers in the field over appropriate standards of treatment and the application of the Geneva Conventions.   

How did these techniques, which were rescinded by Secretary Rumsfeld in January 2003 become so prevalent in Iraq?  The Fay report states it flatly:  “Concepts for the non-doctrinal, in-field manual approaches and practices clearly came from documents and personnel in Afghanistan and Guantanamo.”  Ultimately, the “non-doctrinal” approaches used at Abu Ghraib included nakedness and humiliation, the use of dogs to “fear up” detainees, and sexual and physical assaults.  These approaches migrated to Iraq a number of ways, any of which might have been prevented by clear statements of policy from the top.  Members of the 519th Military Intelligence Battalion served at Bagram Air Force Base in Afghanistan in 2002. Some of these soldiers have been implicated in the deaths of the two prisoners at Bagram.  A number of soldiers from the 519th were sent to Iraq, and some of those have been implicated in the Abu Ghraib abuse scandal.  As we all know, military intelligence played a major role in directing and carrying out the abuses at Abu Ghraib.   

In addition, as the Fay report cites, “Interrogators in Iraq, already familiar with the practice of some of these new ideas, implemented them even prior to any policy guidelines.”  Before long, as the Schlesinger report states, policy guidance backed up the interrogators’ actions.  In August 2003, Maj. Gen. Miller “brought the Secretary of Defense’s April 16, 2003, policy guidelines for Guantanamo with him,” and gave this policy to Lt. Gen. Sanchez, who was, at the time, the highest level commander in Iraq.  On September 14 of last year, according to the Schlesinger report, Lt. Gen. Sanchez approved a policy on interrogation that included techniques that, up to that point, had only been officially applied to so-called enemy combatants—those who, in the minds of President Bush and Secretary Rumsfeld, were not protected by the Geneva Conventions.  The Bush Administration has steadfastly claimed that the Geneva Conventions apply to the war in Iraq.  And yet, Lt. Gen. Sanchez determined, with no authorization to do so, that some of the detainees held in Iraq were to be categorized as unlawful combatants. 

How did Lt. Gen. Sanchez justify his authority to approve such techniques?  The Schlesinger report found that Lt. Gen. Sanchez relied on the President’s February 2002 memorandum and the Department of Justice’s notorious August 1, 2002 memo twisting the definition of torture.  It is deeply troubling, given this evidence, that the Bush Administration has held fast to the contention that the abuses at Abu Ghraib were committed by “a few bad apples.”  And it is extremely disconcerting that the very outcome that military lawyers warned of when they fought against the Administration’s desire to suspend the Geneva Conventions – the undermining of the military’s tradition of upholding the rule of law – came to fruition.  Our armed forces have been tainted by this scandal and our soldiers in the field placed at greater risk.   

The Sanchez policy guidelines were technically in effect for only a month before being revised.  But, as in Afghanistan, these illegal techniques were put to use almost immediately.  Interrogators in Iraq relied upon the guidelines and may have done so believing that they were appropriate.  The Jones report states that, “Some of these incidents involved conduct which, in retrospect, violated international law.  However, at the time some of the soldiers or contractors committed the acts, they may have honestly believed the techniques were condoned.” 

I find it deeply disturbing that American soldiers would have acted on such guidelines.  I have stated many times that those who violated the laws by assaulting and humiliating prisoners should be prosecuted.  The buck should not stop there, however.  The reports have shown that there was a serious breakdown in training and operations.  There was one MP for every 75 prisoners at Abu Ghraib when the abuses occurred.  And, as the Army Inspector General found, interrogation facilities lacked oversight processes and control mechanisms.  Even routine inspections were lacking. 

What these reports show – and, unfortunately, it is an unstated revelation one discovers by reading between the lines – is that once President Bush and his top advisors let the genie out of the bottle by denying the protections of the Geneva Conventions and rewriting the definition of torture, they set off a chain reaction that spanned the globe.  By changing the rules of treatment and interrogation for one group of detainees, by tossing away decades of military protocol, by writing and rescinding and rewriting guidelines so often that soldiers had no clear understanding of policy or practice, and by allowing the CIA to operate in the shadows, the leaders of the Bush Administration lost control.  What was initiated for one group of detainees in one location spilled over into other countries and to very different types of prisoners.   

A day or two after the release of the Schlesinger and Fay-Jones reports, Secretary Rumsfeld still claimed that there was no evidence that prisoners had been abused during interrogations.  I wonder if he took the time to read or to request a briefing on these investigations.  He made the same statement twice before his handlers corrected him, in the middle of a press conference.  Incredibly, he again misstated the facts, “correcting” himself to say that only two or three cases of abuse took place during interrogation.  In fact, 13 of 44 instances of abuse involved interrogation.  It leaves me to wonder. Meanwhile, President Bush has kept quiet about the findings of the reports.  His silence is deafening.   


The Need for an Independent Commission

As I have said before, there needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses, to the officials who set these policies in motion.  An independent commission, structured on the model of the 9/11 Commission, will allow us begin to heal the damage that has been done.   

I am not alone in calling for an independent commission.  Several organizations, including the American Bar Association, Human Rights First, Amnesty International, and Human Rights Watch, have urged the creation of an independent, bipartisan commission to investigate the prisoner abuses.  A recent letter from eight retired generals and admirals to President Bush asked him to appoint a prisoner abuse commission modeled on the 9/11 Commission.  In that letter, the flag officers stated, “internal investigations by their nature … suffer from a critical lack of independence.  Americans have never thought it wise or fair for one branch of government to police itself.” 


The 9/11 Commission provides more than a structural model for a new commission; it also provides a lesson in how perseverance can overcome the Administration’s refusal to seek the truth.  The Bush Administration initially opposed the formation of the 9/11 Commission, just as it now opposes a prisoner abuse commission.  The Administration used the same argument against both commissions.  It asserts that the numerous internal investigations are sufficient to uncover the truth.  Dr. James Schlesinger, the head of the panel established by Secretary Rumsfeld to investigate the prisoner abuses, addressed this issue in his testimony to the Senate Government Affairs Committee in February 2002, as it debated the need for the 9/11 Commission.  He argued for the creation of the Commission because, “to this point many questions have been addressed piecemeal—or not at all.  The purpose of the National Commission would be systematically and comprehensively to address such questions—and to give a complete accounting of the events leading up to 9/11.  In my judgment, such a Commission would serve a high, indeed indispensable, national purpose.”  This is exactly the same reason we need an independent commission to investigate the prisoner abuse scandal. 


The Government Affairs Committee report on the bill to establish the 9/11 Commission stated that it “is a bipartisan initiative to help answer the many remaining questions in a constructive, methodical, and non-partisan way.  The commission would complement investigations being undertaken by Congress and the Executive Branch.”  A prisoner abuse commission would fulfill a similar need—to fill the gaps that inevitably occur when an investigation is addressed in a piecemeal fashion.  We already know some gaps exist—such as the ghost detainee problem and the role of contractors—others are sure to arise in the course of an independent investigation.



Ghost Detainees

International law, as well as the Defense Department’s own policies, requires the registration and accounting of all detainees.  Detainees kept off of the official roles—so called ‘ghost detainees’—are held in violation of the law.  The Fay-Jones report revealed that the ghost detainee problem was far more pervasive than the Defense Department had previously acknowledged.  General Kern, the investigation’s appointing officer, testified before the Senate Armed Services Committee that there could be as many as 100 ghost detainees, but his panel could not thoroughly investigate the matter because the CIA refused to cooperate in the inquiry.   

These revelations should not come as a surprise—human rights groups have been calling for an investigation into the ghost detainee issue for months.  I first wrote to the National Security Advisor about mistreatment of detainees in June 2003, including a request for information on prisoners transferred in secret by the United States to other nations for interrogation.  A report on secret detentions was released on June 17, 2004, by Human Rights First.  The report, titled, Ending Secret Detentions, describes a number of officially undisclosed locations that sources—typically unnamed government sources quoted in the press—have described as detention centers for terrorism suspects.  These sources have discussed facilities in Iraq, Afghanistan, Pakistan, Jordan, Diego Garcia, and on U.S. war ships.  The ICRC has not been allowed access to these facilities.  It issued a public statement in March expressing its growing concern over “the fate of an unknown number of people captured … and held in undisclosed locations.”  To date, its requests have been denied. 

After being rebuffed by the CIA, the Fay-Jones panel asked two offices to conduct further investigations into the ghost detainee issue: the Department of Defense Inspector General and the CIA Inspector General.  Once again, this would result in one branch of government to policing itself.  Like the Fay-Jones panel, the Inspectors General lack the authority to follow such investigations beyond their own departments—again allowing many questions to remain unanswered.  We need to know what role senior Administration officials in the White House, Justice Department, Defense Department, and CIA played in formulating the policies that allowed the illegal detention of ghost detainees.  We know this problem emanated from senior officials—Secretary Rumsfeld admitted in June that he approved the secret detention of one detainee at the request of CIA Director Tenet.  Only an independent commission with significant authority will be able to fully investigate this matter.



The Fay-Jones report also found that civilian contractors were complicit in the abuse of detainees.  We already knew this, but the panel’s findings raise new questions about whether the contractors will be held accountable for their actions.  Thus far, one contractor has been charged for abuse in Afghanistan, but no charges have been filed against contractors in Iraq.  As P.W. Singer points out in his recent Washington Post op-ed, “Army investigators are at a loss over how to hold the contractors accountable.  The Army referred individual employees’ names to the Justice Department more than three months ago, but Attorney General Ashcroft has yet to take action.”  As these cases are referred to the Justice Department, the Judiciary Committee must fulfill its oversight responsibility to ensure these crimes do not go unpunished.  Given the reports and allegations of abuses of Iraqi prisoners that involved civilian contractors, I am deeply troubled at the passivity being displayed by the Department of Justice.  If loopholes exist in the law, the Department should be working with Congress to fill them.



Some argue that another investigation will prevent us from putting the scandal behind us, but ignoring the problem will not make it go away.  Each week brings new allegations that reveal how much we still don’t know.  Human rights groups and journalists have been unrelenting in their efforts to uncover this scandal, and I applaud their contributions.  The report released recently by the War Crimes Project revealed unreported deaths in Afghanistan.  Veteran journalist Seymour Hersh claims in his new book that senior military and national security officials were repeatedly warned in 2002 and 2003 that prisoners were being abused.  Mr. Hersh writes that FBI agents notified their superiors about abuses at Guantanamo and that these reports were passed along to officials at the Pentagon.  The ACLU continues to fight in federal courts to compel the Administration to release documents related to torture.  Even without further government action, this scandal is not going to go away.  It is time for us to lead the investigation, rather than wait to read about the latest discovery of abuse in tomorrow’s paper.  We must establish an independent Commission. 


In the coming months, the remaining Pentagon investigations will come to an end.  It will be like finding an old jigsaw puzzle in the back of the closet—it looks complete, but you can never tell if there are pieces missing until you try to put it together.  An independent commission can take on this important task; it will ensure that no pieces are missing and that we have a complete, unbiased assessment of a sad chapter in our Nation’s history.  The 9/11 Commission showed us that it can be painful to dredge up the past, but it also a necessary step to moving forward.

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