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, 2008

The Honorable Michael Mukasey
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear 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.


Richard J. Durbin