Conyers and Nadler to Attorney General: Appoint Special Counsel to Investigate Torture

For Immediate Release

Congressman Jerrold Nadler
Contact: 

lan Kayatsky
212 367 7350

Conyers and Nadler to Attorney General: Appoint Special Counsel to Investigate Torture

WASHINGTON - Today,
Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary
Subcommittee on the Constitution, Civil Rights and Civil Liberties,
Congressman John Conyers (MI-14), Chair of the House Judiciary
Committee, and their Judiciary colleagues wrote to Attorney General
Eric Holder requesting the appointment of a Special Counsel to
investigate and, where appropriate, prosecute torture committed against
detainees during the Bush administration. Similar letters were also
sent to previous Attorneys General Gonzalez and Mukasey.

"This
letter makes official our views on the necessary procedure in
investigating those U.S. officials who allowed or actively instructed
others to commit torture," said Rep. Nadler. "Because the United States
is bound by its own laws and by international treaty, we are obligated
to investigate and, where necessary, to prosecute those who have
violated the laws against committing torture - whether by ordering it
or committing it directly. We have no choice if we are to remain a just
and principled nation of laws.

"A
Special Counsel is the most appropriate way to handle this matter. It
would remove from the process any question that the investigation was
subject to political pressure, and it would preempt any perceptions of
conflict of interest within the Justice Department, which produced the
torture memos. President Obama has honorably shown his commitment to
the rule of law and placed this process into the hands of his able
Attorney General, where it belongs. I look forward to working with
Attorney General Holder on this, and with Chairman Conyers as the
Judiciary Committee continues its oversight investigations."

Text of the letter, sent today, is below.

April 28, 2009

The Honorable Eric Holder Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

Dear Mr. Attorney General:

We
write to request that you appoint a special counsel for the
investigation and possible prosecution of any violations of federal
criminal laws related to the interrogation of detainees in the
effective custody or control of the United States in connection with
counter-terrorism operations or armed conflicts in the aftermath of the
September 11, 2001 terrorist attacks on the United States. Many of us
previously asked your predecessor, Attorney General Mukasey, to do so,
expressing our desire to ensure an independent investigation into
serious allegations that high-ranking officials, including lawyers and
others from the Department of Justice itself, approved the use of
enhanced interrogation techniques that amounted to torture.

Recent
events highlight the need for such an appointment. The OLC memos
formally released last week provide additional details regarding the
purported legal justifications provided by DOJ lawyers for various
interrogation techniques, including the slamming of detainees into
walls, the use of stress positions, confinement in boxes, sleep
deprivation, and waterboarding. The Senate Armed Services Inquiry into
the Treatment of Detainees in U.S. Custody, declassified and released
on April 21, confirms that these interrogation practices were developed
at the request of and authorized by high-ranking administration
officials, and that the abuse of detainees at Abu Ghraib and elsewhere
can be linked to these policy decisions.1 Top Bush Administration
officials previously testified that at least three detainees were
subjected to waterboarding,2 and the recently released OLC memos reveal
that one detainee was subjected to waterboarding 183 times in a one
month period while another was subjected to waterboarding 83 times in
one month.3

During
your confirmation hearings, you testified that waterboarding is
torture, and the International Committee of the Red Cross, which had
been denied access to detainees held at CIA secret prisons for several
years, has concluded that the treatment alleged by fourteen of these
detainees constituted torture.4 Earlier this year, the Bush
Administration's top official in charge of military commissions
concluded that the U.S. military's treatment of Mohammed al-Qahtani
"met the legal definition of torture."5

As
you are aware, Justice Department regulations provide for the Attorney
General to appoint an outside special counsel when: 1) a "criminal
investigation of a person or matter is warranted," (2) the
"investigation or prosecution of that person or matter by a United
States Attorney's Office or litigating Division of the Department of
Justice would present a conflict of interest for the Department," and
3) "it would be in the public interest to appoint an outside Special
Counsel to assume responsibility for the matter."6 Such counsel is to
be appointed from outside the government and should have the authority
to secure resources for the investigation and prosecution and have full
investigatory and prosecutorial powers.7

We
believe that these three criteria have been met and warrant the
appointment of a special counsel to investigate whether federal
criminal laws were violated by individuals who authorized or
participated in the interrogation of detainees. First, as noted above,
there is abundant, credible evidence of torture and the cruel, inhuman,
and degrading treatment of detainees, and criminal investigation is not
only warranted, it is also required. The Geneva Conventions obligate
High Contracting Parties like the United States to investigate and
bring before our courts those individuals "alleged to have committed,
or to have ordered to be committed" grave breaches of those
Conventions.8 The war crimes act, 18 U.S.C. § 2441, creates
jurisdiction in the U.S. courts whenever the victim or alleged offender
is a U.S. national or member of the Armed Forces, and specifically
identifies torture and cruel or inhuman treatment, as well as the
conspiracy to commit those acts, as punishable war crimes. The
Convention Against Torture (CAT) - signed by President Reagan in 1988
and ratified by the U.S. Senate in 1994 - also obligates the U.S. to
conduct a "prompt and impartial investigation" and "submit the case to
[our] competent authorities for the purpose of prosecution" whenever
there are reasonable grounds to believe that torture has been committed
in a territory under our jurisdiction or by U.S. nationals.9 The
federal anti-torture statute, 18 USC § 2340A, criminalizes torture and
the conspiracy to commit torture and creates jurisdiction in the U.S.
courts whenever the "alleged offender is a national of the United
States" or "is present in the United States."

Second,
a conflict of interest would be presented in having the Department
investigate allegations that high-ranking Justice Department officials
and lawyers provided legal guidance on and may have been involved in
developing interrogation policy. For example, the Department of
Justice's Office of Legal Counsel and former Attorney General and White
House Counsel Alberto Gonzales advised the Administration and President
to deny detainees the legal protection of the Geneva Conventions, and
OLC lawyers wrote extensive legal memos that authorized specific
interrogation techniques that likely amounted to torture. While some
key individuals are no longer with the Department or Executive Branch,
it is impossible to determine at this stage and before conclusion of
the necessary investigation whether additional conflicts of interest
might exist or arise. When Department lawyers are alleged to have been
involved, we believe the Attorney General should turn to a special
counsel.

Finally,
there can be little doubt that the public interest will be served by
appointment of a special counsel. The authorization and use of
interrogation techniques that likely amounted to torture has generated
tremendous concern and outrage in this country, and has harmed our
legal and moral standing in the world. As a country committed to the
rule of law, we must investigate and demand accountability for acts of
torture committed by or on our behalf. Appointing a special counsel to
undertake this task would serve the interests of the Department and of
the public in ensuring that the necessary investigation is thorough and
impartial, and that the United States fairly investigates serious and
credible accusations of misconduct, even where high-ranking government
officials may be involved. We applaud President Obama's efforts to
assure America and the rest of the world that this Department's
investigative and prosecutorial decisions will be free from political
considerations. We are confident that you and the President will uphold
this critical guarantee, and will restore the Department's independence
and integrity. Yet, as you undoubtedly are aware, Americans on both
sides of the political aisle worry that this issue already is mired in
politics, with those who oppose investigation characterizing that
possibility as a political witch hunt and those who, like us, support
accountability expressing concern that the rule of law must be upheld.
Given these factors, any decisions that you make regarding prosecutions
will be perceived by some as political. Appointment of a special
counsel insulates you and the Department from such claims, and instills
confidence that the outcome of the investigation could not possibly
have been predetermined or otherwise improperly influenced.

The
special counsel rules provide for both accountability and transparency.
An appointed special counsel would be subject to Department ethics
rules and to oversight by you to prevent undue expansion of the
investigation. The special counsel would report to you about any
decision to prosecute or not to prosecute; you could provide that
report to Congress and the public, and would have to report to Congress
if the special counsel is fired or the investigation halted. Appointing
a special counsel balances the need, recognized after Watergate, to
ensure independent investigation of high-ranking officials with the
need to avoid prosecutors with unchecked power.

Given the importance of this issue, we look forward to a response to our request at your earliest convenience.

 

1.
Senate Armed Services Committee Inquiry Into the Treatment of Detainees
in U.S. Custody,
http://levin.senate.gov/newsroom/supporting/2009/SASC.DetaineeReport.042....

2. Three were waterboarded, CIA chief confirms, LA Times, Feb. 6, 2008.

3. Scott Shane, Waterboarding Used 266 Times on 2 Suspects, NY Times, April 20, 2009.

4.
ICRC Report on the Treatment of fourteen "High Value Detainees" in CIA
Custody, Feb. 2007, available at http://www.nybooks.com/icrc-report.pdf.

5. Bob Woodward, Detainee Tortured, Says U.S. Official, Washington Post, January 14, 2009, A01.

6. 28 C.F.R. 600.1.

7. Id. at 600.3-600.6.

8.
Geneva Convention for the Amelioration of the Condition of the Wounded
and the Sick in Armed Forces in the Field, Aug. 12, 1949, entered into
force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 31, Art.
49http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/fe20c3d903c...
Geneva Convention for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,
entered into force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 85, Art.
50 ; Geneva Convention Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, entered into force Oct. 21, 1950. 6 U.S.T. 3316, 75
U.N.T.S. 135, Art. 129; Geneva Convention Relative to the Protection of
Civilian Persons in Times of War, Aug. 12, 1949, entered into force
Oct. 21, 1950, 6 U.S.T. 3516, 75 U.N.T.S. 287, Art. 146.

9. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Arts. 7(1), 12.

 

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