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 (simulated drowning); 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.
Army Private Lynndie England was sentenced yesterday to three years in prison for her role in the abuse of detainees. She joins a growing list of privates, corporals, and sergeants being sentenced to prison, while Flanigan joins the growing list of top officials in the torture scandal who are getting better jobs. The ACLU urges the Committee to bring accountability regardless of rank or position, as an important step to restoring the rule of law to the government.

The Role of Deputy Attorney General

The Deputy Attorney General is the nation's second-highest ranking law enforcement official. If confirmed, Flanigan will directly supervise the Justice Department's Criminal Division, all United States Attorneys, and the Director of the Federal Bureau of Investigation. All authority to investigate and prosecute any person for violations of the Anti-Torture Act or other federal laws criminalizing the torture or abuse of detainees (other than violations of the U.S. Code of Military Justice that are prosecuted by the military itself) will be consolidated under Flanigan.

The problem is compounded by the fact that the persons holding positions immediately above and below the Deputy Attorney General also have played key roles in the development or implementation of abusive interrogation practices. Attorney General Gonzales worked alongside Flanigan in developing the policies that led to the abuses at Abu Ghraib and Guantanamo Bay, and the head of the Criminal Division Alice Fisher (who was recess appointed in August by President Bush to circumvent the Senate) attended regular meetings on the interrogations at Guantanamo Bay.

The Justice Department Is Already Failing in Investigations of Torture Allegations

The Justice Department has already proven itself incapable of conducting a full and fair investigation of violations of the Anti-Torture Act and other federal criminal laws against torture and abuse. Despite numerous government-produced documents alleging criminal acts by civilians, including civilian CIA agents and private contractors, the Justice Department has brought only one indictment, of a contractor who was indicted by the U.S. Attorney for North Carolina.

When then-Attorney General John Ashcroft announced the indictment of the private contractor on June 17, 2004, he also said that ""the Justice Department has received one referral from the Department of Defense and additional referrals from the CIA."" However, more than 15 months later, there have been no additional indictments. In addition, the former commander in Iraq, General Sanchez testified under oath before the Senate Armed Services Committee on May 19, 2004 that he never approved certain abusive interrogation practices, which was directly refuted by an earlier memorandum that he signed and initialed to approve precisely those practices. The Justice Department has taken no action against him for this sworn statement misleading the Senate; the Administration reportedly is considering promoting him to a four-star command.

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.""

During his confirmation hearing and in written responses to questions from Senators, Flanigan has acknowledged discussions at the White House about interrogation techniques and also about the Justice Department's interpretation of the anti-torture statute. However, he refused to provide the names of participants in those discussions, said he ""do[es] not remember any discussion of the application of the statutory standards to particular techniques,"" and refused to provide any further information on the discussions that he had while a White House lawyer about interrogation techniques.

Flanigan Does Not Consider Severe Abuse to Be ""Inhumane;"" His Responses Raise More Questions About What Was Approved

In response to specific questions from Senator Durbin on whether physical beatings, mock executions, waterboarding (simulated drowning), or painful and prolonged stress positions were inhumane, Flanigan responded that ""'inhumane' treatment is not susceptible to a succinct definition."" He also stated that whether any of these practices ""would be lawful would depend on the facts and circumstances surrounding its use,"" and that ""it would be inappropriate for me to speculate about whether such techniques are lawful or humane.""

Flanigan is not simply playing word games with the Committee. The reason that he will not answer these straightforward questions from Senator Durbin is that at least some of these practices were approved by the government--despite U.S. treaty obligations against the use of cruel, inhumane, and degrading treatment. Although it is unclear whether mock executions were approved, the other practices were either explicitly approved in recently released government documents or, according to newspaper reports, were approved in the August 2002 Justice Department memorandum that Flanigan helped prepare and that is being withheld by the Justice Department based on a claim that the memorandum was ""confidential legal advice for the consideration of senior Administration decision-makers.""

The Administration is attempting to insulate the government against liability by claiming that its obligation under the Senate-ratified Convention Against Torture to refrain from cruel, inhumane, and degrading treatment does not extend to its treatment of non-Americans overseas. Even the Reagan Administration official who handled the ratification of the Convention Against Torture, Abraham Sofaer, disagrees with the Administration's new interpretation that it does not have a legal obligation under the treaty to refrain from inhumane treatment of non-Americans overseas. If Flanigan and other top Administration officials approved inhumane treatment such as waterboarding--and if the Administration is incorrect in its twisted interpretation of the treaty's obligations--they will have placed the United States in violation of the treaty and federal law.

At the very least, Flanigan should not have the authority over investigations or prosecutions that involve potentially criminal acts that Flanigan or other top Administration officials may have already wrongly found to be outside the scope of the Anti-Torture Act or the Convention Against Torture. The Senate must insist on an outside special counsel for torture prosecutions before moving forward with the Flanigan nomination.

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 should not move forward with the Flanigan nomination 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.

On September 19, 2005, the Justice Department refused the request of Senators Kennedy, Feingold, and Durbin for this memorandum. The Justice Department explained in a letter that ""[t]here are substantial confidentiality interests associated with any such opinion, which would consist of confidential legal advice for the consideration of senior Administration decision-makers . . . its disclosure outside the Executive Branch would harm the deliberative processes of the Department and the Executive Branch and disrupt attorney-client relationships.""

The ACLU urges the Committee to reject this unsupportable claim of confidentiality and demand the disclosure of the memorandum before moving forward with the Flanigan nomination. Based on the reports of its content, along with the Administration's strong resistance to its disclosure and its fierce opposition to the McCain amendment to the Defense Department authorization that would bar inhumane treatment, our concern is that the memorandum likely finds no criminal liability under the Anti-Torture Act and Convention Against Torture for acts that most legal experts would find to be criminal. The Senate will not be able to predict whether and how the Justice Department will fully enforce the law without obtaining this memorandum.

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.

Although Attorney General Gonzales has refused thus far 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 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

Christopher E. Anders 
Legislative Counsel