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Justice Department Declines Almost All Detainee Abuse Referrals
Of the 24 cases of detainee abuse that the CIA's inspector general and Department of Defense have referred to the Justice Department for criminal prosecution in the last several years, the Department has declined to prosecute in 22 of them, according to a letter from a Justice Department official in response to Sen. Dick Durbin's (D-IL) question about "accountability for illegal conduct by civilians in Iraq and Afghanistan."
A prosecution team was formed in June, 2004 to handle the cases in the U.S. attorney's office for Virginia's Eastern District, and then-Attorney General John Ashcroft announced he'd be referring all pending cases there. While the Defense Department has prosecuted a number of soldiers for abuse, this team was formed to concentrate on abuses by civilian government employees.
And how have they done? Well, there have been no indictments. The DoJ official, Brian Benczkowski, disclosed that two of the cases remained pending -- it's unknown what those cases are. Benczkowski said that there had only been four referrals by the CIA's inspector general in the last year, and all four had been declined. You can read that letter here.
In December of 2006, The New York Times reported that many of the cases had failed because "problems with evidence and the fragmentary nature of some of the accusations had proved so daunting that prosecutors never even reached the point of grappling with difficult legal issues involving permissive interrogation guidelines." In one case, the paper reported, "Justice Department prosecutors investigated an accusation that a civilian translator working under a contract with the military had sexually assaulted a detainee at Abu Ghraib prison. But when investigators arrived in Iraq, the detainee and witnesses had been released in Baghdad and could not be found."
In his letter, Benczkowski cites a number of reasons for why the prosecutions never got off the ground, "insufficient evidence" chief among them. He adds that there had been cases of "misdemeanor assaults" in some of the cases referred by the Defense Department, but that the Military Extraterritorial Jurisdiction Act prevented them from prosecuting such offenses.
Durbin had also asked (and you can read his letter below) whether any cases involving waterboarding were among the cases that had been referred. Benczkowski only responded," we are not in a position to respond."
There has been one successful prosecution of a civilian employee for detainee abuse -- that of contractor David Passaro for beating the detainee Abdul Wali with a metal flashlight and his fists. Wali later died. But that prosecution was brought by another U.S. attorney's office -- the Eastern North Carolina District. All other cases have gone to the Eastern Virginia team. Passaro was convicted, sentenced to 8 years in prison, and is appealing.
January 10, 2008The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530Dear Attorney General Mukasey:
I write to request an update on the Justice Department’s handling of detainee abuse allegations.
On June 17, 2004, then Attorney General John Ashcroft announced that he was assigning all detainee abuse cases to the U.S. Attorney’s Office for the Eastern District of Virginia (USAO/EDVA). It has been over three and a half years since then and in that time there has not been a single indictment.
I first wrote to then Attorney General Gonzales about this matter on November 3, 2005. It has been over a year since I last requested an update. In January 2007, the Department notified me that nine of the 20 cases which had been referred to USAO/EDVA had been closed.
In the last year, new questions have arisen about accountability for illegal conduct by civilians in Iraq and Afghanistan. First, the killing of 17 Iraqis in a shooting involving U.S. security firm Blackwater has highlighted the need to examine the activities of contractors in Iraq more closely and to hold them to the same standards to which we hold our military personnel. While the Justice Department has not prosecuted any civilians for detainee abuse in Iraq, the Defense Department has prosecuted numerous military personnel.
Also, you and your predecessor Alberto Gonzales have refused to say whether abusive interrogation techniques such as waterboarding are illegal, even though the United States has in the past prosecuted Americans who subjected detainees to waterboarding. This raises questions about how the Justice Department would handle a detainee abuse case involving waterboarding or other abusive interrogation techniques.
Finally, we recently learned that in 2005 Central Intelligence Agency officials destroyed videotapes of detainees being subjected to abusive interrogation techniques. We do not know whether any of the detainee abuse cases referred to the Justice Department involve conduct that was recorded and, if so, if those recordings were destroyed.
Accordingly, I would appreciate your responses to the following questions:
1. Please provide an update on the detainee abuse investigations that were pending in January 2007. How many of these investigations are still ongoing? How many have been closed? What were the bases for closing these investigations?
2. Since January 2007, has the Justice Department received any new detainee abuse referrals? If so, for how many of these referrals were investigations opened? How many of these investigations are still ongoing? How many have been closed? What were the bases for closing these investigations?
3. Have any detainee abuse referrals received by the Justice Department since 2001 involved allegations that the detainee was subjected to waterboarding?
4. Have any detainee abuse referrals received by the Justice Department since 2001 involved alleged conduct that was videotaped? If so, have these videotapes been destroyed?
Thank you for your time and consideration.
Sincerely,
Richard J. Durbin
Josh
Zachary
Another strongly worded letter. Look at the DoJ AG shake. Scary. Recalling the Congress isn't willing to use "inherent contempt" nor impeachment, but pretend that the DOJ might enforce a contempt citation, which the AG has said he will not do: Perhaps someone could enlighting the public: What credible enforcement mechanism is there behind this letter; or a DoJ AG decision to not respond, or claim the answers -- if provided -- would "threaten" national security? Nothing.
It's disturbing to read law enforcement and the US government in general has shown disdain for the US Supreme Law and Geneva Conventions, and showed little inclincation to ensure Geneva is fully enforced against the US and its agents/contractors as a detaining power. If Geneva is not enforced -- both in practice and by appearances -- there are serious Geneva principles that come into play: Reciprocity and retalation. If as it appears, the DOJ refuses to enforce Geneva, then all other nations may engage in reciriprocal violations of the laws of war. Any alleged breach of the laws of war committed by the US may under the principle of reciprocity and retalation permit reciprocal violations against similarly situated US persons.
Let's be specific. The alleged US misconduct at Guantanamo is that non-charged civilians, unrelated to combat, have been held on the basis of dubious evidence, and denied access to legal counsel. The issue in terms of reciprocity and retalation isn't narrowly an issue of whether other powers may impose like abuses against US mlitary power, but the opposite: Whether civilians, charged on the basis of dubious evidence which they cannot see, are asserted to be unlawful combatants.
Durbin's letter isn't about a simple law enforcement matter, prosecutions, nor enforcement of Article II powers through the judiical branch. It relates to the potential abuses US Americans could suffer globally under the laws of war. If the DOJ AG will not enforce the laws of war, as it appears, then he's not demostrating compliance with his oath of office, 5 USC 3331; but appears to have mental reservations. Where does Congress plan to enforce Geneva against the AG if they're using the AG to enforce the law, and have removed impeachment from the options?
Congress, by implicitation, has assented to violations of the laws of war; appears to condone breaches of the laws of war without any prospect of enforcement; and appears unwilling to credibly enforce the laws of war, even against the AG. Without enforcement of written law, the US is correctly defined as being an "illegitimate" government.
February 8, 2008 2:52 PM | Reply | Permalink
The DOJ AG's assertion implicitly states he has no serious plan to enforce Geneva. The US Constitution is not a grant of rights to POWs; but it recognizes on the US a legal duty through Geneva to recognize a leash against US personne/agent's war crimes.
The ICC position on enforcing Geneva hinges on whether the US will or will not independently enforce the laws of war. If the US enforce Geneva, ICC has no role; but once the DoJ AG asserts there is no plan to enforce Geneva, something serious happens.
The ICC's apparent policy is summarizsed here: "No U.S. service member could be brought before the ICC so long as the United States launched a good faith investigation of its own. From Also, Nuremberg courts stated, "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance
February 8, 2008 5:12 PM | Reply | Permalink
The absurdity of the DOJ AG's statement is his implicit assertion that unless he enforces Geneva, nobody else has any say on the matter. "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice." From the Nuremberg Justice Trial.
Once the DOJ AG asserts there is no plan to enforce Geneva or prosecute those allegedly complicit with war crimes, then the US has a weaker argument in asserting, "We cannot be subject to the ICC because our system of laws and courts will do the job."
- How can the DoJ AG seriously argue he has "no mental reservations" about his oath when he knows, or should know, his duty is to enforce Geneva?
- Does the DOJ AG understand that it is allegedly a frivolous argument to assert, "The US is only responsible for enforcing US laws" or "The Constitution does not confer rights to the POWs?"
- Does the public understand that when the DOJ AG refuses to enforce all laws of war, that the ICC would have a broader legal basis to assert, "The US legal system is not working as intended to enforce Geneva; the ICC has a greater duty to do with the US criminal justice system refuses to do"?
- Does the public understand when the DOJ AG refuses to enforce the laws of war against all people under both US laws and the Geneva conventions, that until the ICC does adjudicate these issues, other nations may do as the US has done: Detain US citizens traveling on accusation alone, without a chance to observe evidence, and indefinitely detain US citizens on the charge of "unlawful enemy combatant"?
The problem on the table is the spiraling violence and barbarism stemming from the DOJ AG refusal to enforce the laws of war. The US's likely legal-military response to any retaliatory acts against US personnel -- in response to US failures to enforce Geneva -- with more violations of the laws of war; or direct combat operations against detaining powers. However, WWII is precedent for such a policy to be struck down as illegal. The Japanese attempted to argue in response to the "US efforts to constrain Japan because of Japan's illegal warfare," that Japan could attack at Pearl Harbor. However, Japan's first illegal use of force in Asia did not legalize subsequent Japanese combat designed to respond to US efforts to thwart Japan's militarism.
The public should openly discuss the problem Pelosi has in her alleged "OK" of the prisoner abuse. She's arguably tainted. By allegedly attaching herself to a policy that supported war crimes against POWs, she's in no position to credibly argue she's made an informed decision about impeachment. Rather, it's more likely that her decision to remove impeachment from the table is linked with her personal, non public objective to insulate herself from the foreseeable investigation into both the President and herself on these alleged POW abuse policies.
Pelosi should remove/recuse herself from the impeachment decision; and permit an open House investigation into the alleged war crimes which the President, DoJ AG, and others are allegedly complicit. Arguably, members of Congress when they refuse to enforce Geneva against this sitting DoJ AG are duplicating the error Nuremberg sanctioned: A nation which neither impeaches nor prosecutes is not civilized.
DoJ AG's comments need to be looked at more broadly than alleged malfeasance, or oath of office issues, but whether by his alleged inaction in enforcing Geneva he's implicitly arguing that the ICC must do what the DOJ AG, Congress, and US legal system refuses to do: Fully enforce Geneva against US persons. A Congress and DOJ that jointly agree to neither impeach nor prosecute would duplicate the uncivilized conduct Nuremberg prosecuted, but broaden the legal basis for the ICC to enforce the laws of war.
If the US were to ignore the ICC, then other nations would have no option but use warfare to enforce the laws of war. Russia and China are well positioned to expand their alliance and confront the US on the battlefield. It would be a shame if the US attempted to characterize Russian and Chinese reasonable concerns with the US lawlessness in a way that matched the Japanese of WWII, rather than the standard of civility Nuremberg expected of the losing combatants. The US has well squandered its moral and legal authoirty since 9-11. There's little sense in questioning whether this President would squander US national security to justify expanding illegal warfare. It is not speculative that the President's foreign policy has been disasterous, absurd, and reckless. The question is whether the President shall be constrained by the rule of law imposed from either Congress and/or the DOJ AG; or whether the President must be constrained through lawful combat under the Principle of reciprocity and retaliation.
It would be preferable if peaceful options were used. However, his President appears more interested in abusing power than in constraining his responses according to written law or the laws of war. To what extent his allegedly reckless war crimes are linked with frivolous arguments from legal counsel remains a matter for the Congress, DOJ AG, and ICC to review. There is no statute of limitations for war crimes.
What is the plan of the US to either impeach or prosecute for malfeasance the DOJ AG? Without a plan, the ICC must act. If the US does not permit the ICC to review these matters, and the US does not voluntarily enforce Geneva, then other nations have only the option to use military force to enforce Geneva; or engage in reciprocal or retaliatory actions.
If the DOJ AG chooses not to enforce the laws of war, what plan does the Congress have to use inherent contempt -- not a criminal charge, enforced by the DOJ AG -- to ensure the DOJ AG remains responsive to Geneva? If Congress will not assert all its options to enforce Geneva, a case can be made that Congress is not doing all that it should to enforce Geneva -- a claim adjudicated at Nuremberg at the Justice Trial. It remains to be seen how future prosecutors would or would not attempt to expand the Justice Trial precedent to Members of Congress and charge them with complicity with war crimes for failing to enforce the laws of war through the DOJ AG.
If there is no plan of Congress to either impeach, prosecute, or enforce the laws of war against the DOJ AG, what reasonable basis is there to conclude that Members of Congress have fully asserted their 5 USC 3331 oath of office, or that they do not have a mental reservation? There is little to believe Members of Congress are fully asserting their oath of office to fully enforce the laws of war, arguably a subsequent war crime as adjudicated at the Justice Trial.
It's time to make way for an impeachment investigation, or a war crimes investigation of the DOJ AG, or accept the US Congress is leaving open the option that the only way the US will enforce Geneva is if other nations through combat, retaliatory strikes, or reciprocal violations of the laws of war. This does not reflect well on the US system of "laws" and "governance" that it is attempting to export; nor does it inspire in the minds of a civilian population a notion the US government is serious about its legal obligations or issues of legitimacy. It might as well stay home while the public openly discusses a more responsive system of governance.
If you want to have a country that openly discusses solutions, then discuss new governance that imposes the law upon the DoJ AG. Otherwise, inaction on this issue sends one simple message: You're happy with the leadership failure of Congress and the DOJ AG to not fully enforce the laws of war, and would rather the US adjust policy only in response to external threats of retaliatory or reciprocal actions. If your choice is the former, then legitimacy prevails; if you prefer the latter, then you are supporting expanded illegal warfare.
Rome fell. The US cannot forever expand, especially when it has finite resources opposed by an expanding pool of people more concerned with their security than the US is concerned with enforcing the laws of war.
February 8, 2008 6:25 PM | Reply | Permalink