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Open Letter to Attorney General Alberto Gonzales

Alberto Gonzales  
Attorney General of the United States  
U.S. Department of Justice  
950 Pennsylvania Ave., N.W.  
Washington, D.C. 20530-0001  
April 5, 2006  
Attorney General Gonzales:  

The 2006 Defense Authorization Act, passed by Congress in January 2006, contains new provisions clarifying that all individuals acting under the color of U.S. law categorically are prohibited from engaging in or authorizing cruel, inhuman and degrading treatment of detainees in U.S. custody. These provisions were passed by Congress to rectify lack of clarity in regard to detention and interrogation techniques, and to prevent conduct that is prohibited by international law and illegal under domestic criminal law.  
We are now writing to urge you to issue a clear public statement about specific legal standards applicable to detention and interrogation of detainees overseas, under this legislation and other existing laws. Such a statement is necessary because, notwithstanding the 2006 Defense Authorization Act, you and other administration officials have not yet made clear statements about the specific legal standards applicable to the detention and interrogation of detainees in U.S. custody overseas. We are concerned that this lack of clarity continues to lead to confusion about the legality of specific interrogation techniques.  
We are particularly concerned about your continuing failure to issue clear statements about illegal interrogation techniques, and especially your failure to state that “waterboarding”—a technique that induces the effects of being killed by drowning—constitutes torture, and thus is illegal. We urge you to make such a statement now.  
The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”  
Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.  
Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.  
Under the laws of the land, U.S. personnel who order or take part in waterboading are committing criminal acts—torture, assault, and war crimes—which are punishable as felony offenses. The Department of Justice should clarify this to all U.S. personnel, and prosecute violations of the law.  
We have no doubt that if a captured American were subjected to waterboarding, the U.S. government would condemn this as torture and demand or seek prosecution.  
We also urge you to clarify the legality of other abusive interrogation techniques, such as subjection to extreme temperatures, forced standing, binding in stress positions, and severe sleep deprivation. These techniques, like waterboarding, cause physical and mental suffering and are illegal under domestic and international law. At minimum, these techniques amount to cruel, inhuman, or degrading treatment, categorically prohibited under the 2006 Defense Authorization Act; and they violate U.S. obligations under international human rights and humanitarian laws, including the Convention Against Torture and the Geneva Conventions. Depending on how they are used, these and other abusive techniques can amount to torture, potentially prosecutable under the U.S. torture and war crimes statutes. The U.S. State Department has condemned numerous other countries for utilizing these techniques, in many cases stating that the techniques amount to torture.  
As the Attorney General, you have the responsibility to speak clearly on matters of the legal standards for detention and interrogation of prisoners, and as the executive branch's chief legal officer, you are obliged to enforce U.S. laws.  
Moreover, you owe it to U.S. military and security personnel, including those who authorize and conduct interrogations, to specify accurately that the techniques described above are not legal. This is vitally important because personnel who rely on advice to the contrary place themselves in legal peril.  
We sincerely hope that you will uphold the legal standards discussed above, and make efforts to articulate them clearly and publicly.  
Richard Abel, UCLA School of Law  
Bruce Ackerman, Yale University  
Catherine Adcock Admay, Duke University  
Madelaine Adelman, Arizona State University  
Jose E. Alvarez, Columbia Law School (former attorney-adviser, Department of State)  
Paul Amar, University of California-Santa Barbara  
Fran Ansley, University of Tennessee College of Law  
Michael Avery, Suffolk Law School  
Amy Bartholomew, Carleton University  
Katherine Beckett, University of Washington  
George Bisharat, Hastings College of the Law  
Christopher L. Blakesley, William S. Boyd School of Law (UNLV)  
Gary Blasi, Professor of Law, UCLA School of Law  
John Charles Boger, University of North Carolina - Chapel Hill  
David Bowker, adjunct, Cardozo Law School (former attorney-adviser, Department of State)  
Alice C. Briggs, Franklin Pierce Law Center  
John Brigham, University of Massachusetts, Amherst  
Peter Brooks, University of Virginia  
Rosa Brooks, University of Virginia  
William T. Burke, University of Washington School of Law  
William Burke-White, University of Pennsylvania School of Law  
Kitty Calavita, University of California-Irvine  
Henry (Chip) Carey, Georgia State University  
Anupam Chander, University of California-Davis  
Oscar G. Chase, New York University Law School  
Kathleen Clark, Washington University  
Cornell W. Clayton, Washington State University  
Marjorie Cohn, Thomas Jefferson School of Law  
David Cole, Georgetown University Law Center  
John Comaroff, University of Chicago  
Michael Comiskey, Pennsylvania State University  
Marianne Constable, University of California- Berkeley  
Don Crowley, University of Idaho  
Scott Cummings, UCLA School of Law  
Eve Darian-Smith, University of Massachusetts-Amherst  
Benjamin Davis, University of Toledo College of Law  
Stephen F. Diamond, Santa Clara University School of Law  
Hilal Elver, University of California-Santa Barbara  
Richard Falk, Princeton University and University of California-Santa Barbara  
Thomas G. Field, Jr. Franklin Pierce Law Center  
Gregory H. Fox, Wayne State University Law School  
Lawrence M. Friedman, Stanford University  
Michael Froomkin, University of Miami School of Law  
David R. Ginsburg, UCLA School of Law  
Angelina Snodgrass Godoy, University of Washington  
Leslie F.Goldstein, University of Delaware  
Kenneth W. Graham, Jr., UCLA Law School  
David Greenberg, New York University  
Lisa Hajjar, University of California-Santa Barbara  
Joel F. Handler, UCLA School of Law  
Hendrik Hartog, Princeton University  
Lynne Henderson, University of Nevada-Las Vegas  
William O. Hennessey, Franklin Pierce Law Center  
Richard A. Hesse, Franklin Pierce Law Center  
Elisabeth Hilbink, University of Minnesota  
Jennifer L. Hochschild, Harvard University  
Scott Horton, Adjunct, Columbia Law School  
Derek Jinks, University of Texas School of Law  
Jerry Kang, UCLA School of Law  
Lisa A. Kelly, University of Washington School of Law  
Heinz Klug, University of Wisconsin  
Itzchak E. Kornfeld, Drexel University  
Ariana R. Levinson, UCLA School of Law  
Sanford Levinson, University of Texas Law School  
Robert Justin Lipkin, Widener University School of Law  
Lynn M. LoPucki, UCLA School of Law  
David Luban, Georgetown University Law Center  
Deborah Maranville, University of Washington School of Law  
Ann Elizabeth Mayer, University of Pennsylvania  
Jamie Mayerfeld, University of Washington  
Joel Migdal, University of Washington  
Martha Minow, Harvard Law School  
William W. Monning, Monterrey College of Law  
Kathleen M. Moore, University of California-Santa Barbara  
Forrest S. Mosten, UCLA School of Law  
Ken Mott, Gettysburg College  
Stephen R. Munzer, UCLA School of Law  
Jyoti Nanda, UCLA School of Law  
Smita Narula, New York University School of Law  
Julie Novkov, University of Oregon  
Frances Olsen, UCLA School of Law  
John Orcutt, Franklin Pierce Law Center  
Arzoo Osanloo, University of Washington  
Jordan J. Paust, University of Houston  
William P. Quigley, Loyola University, New Orleans  
Christopher J. Peters, Wayne State University Law School  
Judith Resnik, Yale Law School  
Sandra L. Rierson, Thomas Jefferson School of Law  
Brad R. Roth, Wayne State University  
Gary Rowe, UCLA School of Law  
Austin Sarat, Amherst College  
Margaret L. Satterthwaite, New York University School of Law  
Stuart A. Scheingold, University of Washington  
Kim Lane Scheppele, Woodrow Wilson School and Princeton University  
Benjamin N. Schiff, Oberlin College  
David Schultz, Hamline University  
Robert A. Sedler, Wayne State University  
Barry Shanks, Franklin Pierce Law Center  
Anne-Marie Slaughter, Dean, Woodrow Wilson School, Princeton University  
Charles Anthony Smith, University of Miami  
Eunice Son, UCLA School of Law  
Susan Sterett, University of Denver  
Jacqueline Stevens, University of California-Santa Barbara  
Katherine Stone, UCLA School of Law  
Steven Tauber, University of South Florida  
Samuel. C. Thompson, Jr, UCLA School of Law  
Beth Van Schaack, Santa Clara University School of Law  
Andrew Strauss, Widener University School of Law  
Stephen I. Vladeck, University of Miami School of Law  
Richard Weisberg, Cardozo Law School  
Deborah M. Weissman, University of North Carolina School of Law  
Burns H. Weston, University of Iowa and Vermont Law School  
Adam Winkler, UCLA School of Law  
Maryann Zavez, Vermont Law School  
Richard O. Zerbe Jr., University of Washington

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