ACLU Letter to the Senate Judiciary Committee Regarding the Nomination of Timothy Flanigan for Deputy Attorney General

Honorable Arlen Specter
Chairman
Committee on the Judiciary
 224 Dirksen Senate Office Building
Washington, D.C. 20510

Honorable Patrick Leahy 
Ranking Member
Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, D.C. 20510 

Re: Nomination of Timothy Flanigan for Deputy Attorney General

Dear Chairman Specter and Senator Leahy:

The American Civil Liberties Union strongly urges you to oppose moving forward on the nomination of Timothy Flanigan to be Deputy Attorney General until the Justice Department takes two necessary steps: (i) publicly releases an August 2002 memorandum from the Justice Department to the Central Intelligence Agency that authorizes specific interrogation techniques, including waterboarding; and (ii) appoints an outside special counsel for the investigation and prosecution of criminal violations of federal laws against the torture or abuse of detainees. These two steps will bring the nation closer to holding top government officials--and not just a small number of privates and sergeants and low-ranking officers--responsible for the government abandoning the Constitution and the rule of law in Guantanamo Bay and Abu Ghraib.

If Flanigan is confirmed as Deputy Attorney General, the nation's top two law enforcement officials--Alberto Gonzales and Flanigan--will have had important roles in the development of policies that paved the way for the use of torture or abuse during interrogations at Guantanamo Bay and Abu Ghraib. As deputy to then-White House Counsel Gonzales, Flanigan reportedly was responsible for advising on the development of policies that: removed protections against torture and abuse, adopted a definition of ""torture"" that was later disavowed by the Administration, and resulted in an approved list of specific interrogation techniques for use by the CIA--reportedly including waterboarding. As a result, the Attorney General and, if confirmed, Deputy Attorney General cannot make the fair and impartial prosecutorial decisions that could be made by an outside special counsel.

Reports of Flanigan Advising on Torture Techniques

Flanigan appears to have had a central role in advising on the development of interrogation policies that approved the use of torture and abuse. For example, the Washington Post reported on June 28, 2004 that, during the drafting of the August 1, 2002 memorandum from then-head of the Justice Department's Office of Legal Counsel Jay Bybee, Flanigan ""discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized."" Similarly, a June 21, 2004 Newsweek article quotes Flanigan as explaining the interest of the CIA in obtaining legal advice on permissible interrogation techniques. The same article describes White House meetings chaired by then-White House Counsel Gonzales in which Administration lawyers ""found acceptable: 'water-boarding,' or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.""

Flanigan acknowledged these discussions in an article in the March 2005 American Prospect. He described waterboarding--and then defended waterboarding and other abuse by stating that ""if we used these techniques, it would save American lives.""

Need for Public Disclosure of August 2002 Justice Department Memorandum on Torture

During the confirmation hearing for Attorney General Gonzales, members of the Judiciary Committee closely questioned Gonzales on the August 1, 2002 Bybee memorandum narrowly defining torture. That memorandum was withdrawn and replaced by the Justice Department less than a week before the confirmation hearing, but Gonzales defended the faulty legal reasoning in the memorandum.

However, there reportedly is a second August 2002 memorandum from the Justice Department to the CIA that approves a long list of interrogation techniques that reportedly include practices that go beyond not only prior Justice Department and Defense Department practices, but also prior CIA practices. A June 27, 2004 USA Today article reported that ""a current Justice official who knows the memo's content's said it specifically authorized the CIA to use 'waterboarding,' in which a prisoner is made to believe he is drowning."" According to a June 28, 2004 Washington Post article, other approved techniques include ""refusal of pain medication for injuries,"" and ""'stress positions,' light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.""

The Committee cannot fully determine the fitness of Flanigan to serve as Deputy Attorney General without securing the release of the memorandum and determining Flanigan's role in its production or implementation. The June 28, 2004 Washington Post article reported that the CIA suspended use of the approved techniques, after public disclosure of other torture memoranda, out of fear that they may be ""unsanctioned and illegal."" However, if Flanigan advised on the approval of these methods, it will raise an obvious conflict of interest in whether Flanigan can oversee the investigation and prosecution of any civilians who may claim that their criminal activities were approved by higher-level government officials.

Need for an Outside Special Counsel

In the absence of an appointed outside special counsel, the only government agency that can prosecute civilians--including contractors, CIA employees, or other civilian government employees--is the Justice Department. Within the Justice Department, the only prosecutors who can prosecute violations of criminal laws against torture or abuse are either in the Criminal Division of the Justice Department or in the various Justice Department offices of U.S. Attorneys for specific districts around the country. Thus, the only way for civilians to be held responsible for criminal acts is for the Justice Department to investigate and prosecute.

The Criminal Division and all U.S. Attorneys are under the direct authority of the Deputy Attorney General. The Deputy Attorney General directly supervises the Assistant Attorney General for the Criminal Division and all of the U.S. Attorneys. Thus, all of the prosecutorial authority for criminal violations of federal anti-torture laws will be consolidated under the control of Flanigan, who reports only to Gonzales.

Although Gonzales has refused to appoint an outside special counsel for the investigation and prosecution of violations of federal laws against torture and abuse, the standard for an appointment has clearly been met, and the need is only reinforced if Flanigan is confirmed. Unless an outside special counsel is appointed before the confirmation of Flanigan, the Senate will not have any Executive Branch commitment to full accountability and responsibility for criminal wrongdoing by civilians.

Justice Department regulations require the appointment of an outside special counsel when a three-prong test is met. First, a ""criminal investigation of a person or matter [must be] warranted."" 28 C.F.R. 600.1. Second, 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."" Id. Third, ""under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."" Id. If the regulation's three-prong test is met, then the Attorney General must select a special counsel from outside the government, id. at 600.3, who would have the authority to secure necessary resources for the investigation and prosecution and have full investigatory and prosecutorial powers, id. at 600.3-600.6.

In the matter of whether civilians violated, or conspired to violate, the Anti-Torture Act or other federal laws against torture or abuse in the mistreatment of detainees, the three-prong test for appointing an outside special counsel is clearly met. The extraordinary developments of the past year, combined with the ongoing release of additional documents detailing widespread abuse and torture against persons held by the United States, highlight the need for an outside special counsel--particularly if Flanigan joins Gonzales as the nation's top two law enforcement officials.

There is an urgent public interest in investigating and prosecuting all civilians committing torture or abuse or conspiring to commit those crimes against persons being held by the United States as the best way to ensure that the government once again complies with the rule of law, and forever stops the use of torture and abuse. A small number of enlisted men and women and a few lower-ranking military officers should not be the only persons prosecuted for crimes, if top officials and other civilians also engaged in criminal wrongdoing. Given the clear evidence of deliberate and widespread use of torture and abuse, and that such conduct was the predictable result of policy changes made at the highest levels of government, an outside special counsel is certainly in the public interest. Although the ACLU does not take positions on Executive Branch nominations, we urge you to oppose moving forward on this nomination until the Justice Department takes these two important steps toward accountability.

Thank you for your attention to this matter.

Very truly yours,

Caroline Fredrickson
Director