ACLU Asks Holder to Investigate Bush for Violation of Torture Statute

The American Civil Liberties Union today urged Attorney General Eric Holder to ask Assistant U.S. Attorney John Durham to investigate whether former President George W. Bush violated the federal statute prohibiting torture. The request, made in a letter sent to Holder, comes on the heels of the release of Bush's memoir in which Bush admits he directly authorized the use of waterboarding on Khalid Sheik Mohammed and Abu Zubaydah. The Department of Justice has made clear that waterboarding is torture and, as such, a crime under the federal anti-torture statute.

The letter, signed by ACLU Executive Director Anthony D. Romero, states, "In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham's current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush."

The letter states, "[T]he former President's acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president."

The letter also points out that failure to investigate President Bush's role in violating the torture statute would severely compromise America's ability to advocate for human rights in other countries, and concludes, "A nation committed to the rule of law...cannot simply ignore evidence that its most senior leaders authorized torture."

The full text of the letter can be found below:

November 11, 2010
The Honorable Eric Holder
Department of Justice
Robert F. Kennedy Building
Tenth Street and Constitution Avenue, N.W.
Washington, D.C. 20530

Dear Attorney General Holder:

The American Civil Liberties Union respectfully urges you to refer to Assistant U.S. Attorney John Durham the question of whether former president George W. Bush's conduct related to the interrogation of detainees by the United States violated the anti-torture statute. See 18 U.S.C. SS 2340A.

In his recently published memoirs, President Bush discusses his authorization of the waterboarding of Khalid Sheik Mohammed and Abu Zubaydah. He states, for example, that he "approved the use of the [enhanced] interrogation techniques," including waterboarding, on Abu Zubaydah, and that he responded to a request to waterboard Khalid Sheik Mohammed by stating: "Damn right." George W. Bush, Decision Points 169-70 (2010).

The Department of Justice has made clear that waterboarding is torture and, as such, a crime under the federal anti-torture statute. 18 U.S.C. SS 2340A(c). The United States has historically prosecuted waterboarding as a crime. In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham's current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush.

The ACLU acknowledges the significance of this request, but it bears emphasis that the former President's acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.

Failure to fully investigate the role of the former President in the use of torture would also severely compromise our ability to advocate for human rights in other countries. The United States has been a champion of that cause for over half a century. Recently, while in Indonesia, President Obama urged that country to acknowledge the human rights abuses of the Suharto regime. He stated unequivocally that "[w]e can't go forward without looking backwards." Without suggesting that our own experience is equivalent, it is clear that the United States's authority to push for such accountability in other countries, and the willingness of those countries to follow our advice, would quickly unravel if we failed even to investigate abuses authorized by our own officials.

The ACLU understands the gravity of this matter and appreciates the difficulty of the Department of Justice's task. A nation committed to the rule of law, however, cannot simply ignore evidence that its most senior leaders authorized torture.

Thank you for your attention to this matter. For your convenience, I am attaching the ACLU's letter of March 17, 2009, in which we asked you to appoint an independent prosecutor to investigate crimes relating to the abuse of detainees.

Sincerely,

Anthony D. Romero

Encl.
Today's letter can be found here: www.aclu.org/national-security/aclu-letter-attorney-general-holder-urging-investigation-president-bush-violation-

The ACLU's March 17, 2009 letter to Attorney General Holder can be found here: www.aclu.org/national-security/letter-attorney-general-holder-requesting-appointment-independent-prosecuto