Letter to Senate Urging Alberto Gonzales To Appoint Outside Special Counsel

Document Date: January 28, 2005

Gonzales Must Commit to Appoint an Outside Special Counsel to Investigate and Prosecute Anti-Torture Act Violations by Civilians

Re: Nomination of Alberto Gonzales for Attorney General

Dear Senator:

The American Civil Liberties Union strongly urges you to oppose voting on the nomination of Alberto Gonzales to be Attorney General until he commits to appoint an outside special counsel, immediately after confirmation, for the investigation and prosecution of any and all criminal acts committed by civilians in the mistreatment of detainees held in Abu Ghraib, Guantanamo Bay, or transferred by the United States to foreign countries that engage in torture or abuse of prisoners. An outside special counsel is the only way to ensure that any civilian who violated, or conspired to violate, the Anti-Torture Act, 18 U.S.C. 2340-2340A, and other federal laws against torture and abuse will be held accountable and responsible for wrongdoing.

A small number of enlisted men and women and a few low-ranking military officers should not be the only persons held criminally liable, if civilians also engaged in misconduct. However, particularly after new reports of the involvement of Gonzales and other high-ranking government officials in formulating many of the policies that paved the way for the horrors of Abu Ghraib and Guantanamo Bay, it is clear that Gonzales and the Justice Department would have an unavoidable conflict of interest in fully investigating and prosecuting wrongdoing by civilians in this matter.

For that reason, we urge that unless Gonzales commits to the appointment of an outside special counsel before the confirmation vote, the Senate will not have Gonzales’ commitment to full Executive Branch accountability and responsibility for wrongdoing, that should be a prerequisite to the Senate meaningfully fulfilling its constitutional obligation of advise and consent on the Gonzales nomination. The ACLU strongly urges you to oppose voting on the nomination until this important step is taken.

Three-Prong Test for Appointing an Outside Special Counsel

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 extr?aordinary developments of the past four weeks, 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 Gonzales is confirmed as Attorney General.

Prong One of the Test–A “”Criminal Investigation of a Person or Matter [Must Be] Warranted””–Is Met

Although Gonzales has stated that he and the President oppose the use of torture, an array of already-released documents, including memoranda that were either written or requested by Mr. Gonzales, clearly show that top government officials considered and eventually ordered the removal of protections against certain abusive detention and interrogation practices. In addition, reports about some of the undisclosed documents, combined with the documentation of widespread and systematic instances of torture and abuse, raise serious questions about the full extent of civilian involvement in ordering, or paving the way for, torture or abuse of prisoners.

The recent replacement of a notorious Justice Department memorandum interpreting the word “”torture”” in the federal Anti-Torture Act[1] and the U.S.-ratified Convention Against Torture provides an instructive example of the relationship between Gonzales and other high-level government officials and actual policy changes authorizing abuse. On December 30, 2004, the Justice Department issued a new memorandum from its Office of Legal Counsel that rejected and replaced an August 1, 2002 Justice Department memorandum interpreting “”torture”” for purposes of enforcing the Anti-Torture Act. The August 1, 2002 memorandum found that only a narrow band of acts are criminal violations of the Anti-Torture Act, but the December 30, 2004 memorandum rejected that interpretation and found a much wider band of acts are criminal.

Thus, for nearly two years, at least some persons in the Administration took the position that the Anti-Torture Act does not prohibit certain criminal acts of torture that the Administration now agrees are criminal violations of the statute. In other words, for nearly two years, some in the Administration advised that X and Y were criminal acts, but Z was permissible. But now the Administration agrees that X, Y, and Z are all criminal acts. The problem, however, is that the criminal statute did not change; only an interpretation of it changed. The obvious question for an outside special counsel is whether and how anyone acted on the earlier advice that everything in “”Z”” constituted permissible acts.

Among the criminal acts that, pursuant to the August 1, 2002 memorandum, were viewed by some in the Administration for two years as not violating the Anti-Torture Act are certain acts that:

  • cause severe pain, but do not cause pain “”equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death;””
  • cause severe physical “”suffering,”” but do not cause severe physical pain;
  • are taken with knowledge that severe pain or suffering is “”reasonably likely to result from”” the act, but the act was not taken with the “”precise objective”” of inflicting such harm; or
  • are taken pursuant to presidential directive.

Incredibly, acts such as burning, electric shocks, prolonged intense noise, amputation of a finger or similar disfiguring harm, use of stress positions, prolonged exposure to extreme heat or cold would not constitute “”torture”” under the August 1, 2002 memorandum. However, the December 30, 2004 memorandum now states that the acts described in the above-listed first two bullets are criminal, and withdraws the “”precise objective”” requirement listed in the third bullet and the presidential override defense in the fourth bullet. As a result, the Administration now agrees that a much broader range of acts are criminal under the Anti-Torture Act.

The August 1, 2002 Justice Department memorandum was not an academic exercise, but instead appears to have had a significant impact on interrogation and torture policies. Gonzales testified at his January 6 confirmation hearing that the August 1, 2002 memorandum “”represented the Administrative Branch position”” until withdrawn in June 2004 and eventually replaced by the December 30, 2004 Justice Department memorandum.

The Administration obviously cannot change a criminal statute simply by having Justice Department lawyers generate a memorandum. Only Congress can change a statute. Acts that were criminal under the Anti-Torture Act on December 30, 2004 were also criminal on August 1, 2002.

An outside special counsel should investigate and prosecute all violations of the Anti-Torture Act and other federal laws against torture or abuse, particularly during the two-year period after the production of the August 1, 2002 memorandum. That memorandum’s wrong advice on the Anti-Torture Act was cited by the Defense Department in its making decisions on the treatment and interrogation of detainees, and Gonzales testified that he “”suspect[ed] that it was given”” to the CIA, which had asked Gonzales to request the August 1, 2002 memorandum from the Justice Department.

Moreover, recently released FBI and Defense Department documents detail the observation of various acts of torture that may fall into the category of acts recognized as criminal by the December 30, 2004 memorandum, but not criminal by the August 1, 2002 memorandum. For these reasons, an outside special counsel would have to investigate whether the widespread torture of detainees resulted from the criminal acts of torture, or conspiracy to commit torture, committed by civilians, and then prosecute responsible persons. Given the recent substitution of legal memoranda, Gonzales’ own testimony, and the mounting evidence of torture in the field, it is highly unlikely that privates and sergeants were the only ones who committed crimes.

Unfortunately, this example of the relationship between decisions at the top levels of government and actual practices is only one of the best investigated. The Administration is stonewalling against the release of an array of documents, including two orders signed by President Bush, that would shed far more light on how top-level decisions paved the way for abuses in the field. A “”top ten list”” of torture-related documents is attached to this letter. We urge Senators to demand the immediate release of these top ten torture-related documents, at minimum, in order to better understand the full scope of the potential conflict of interest inherent in an investigation by a Gonzales-led Justice Department.

Prong Two of the Test–“”Investigation or Prosecution of that Person or Matter by [the Justice Department] Would Present a Conflict of Interest for the Department””–Is Met

The investigation or prosecution of all persons who violated the Anti-Torture Act and other federal laws against torture or abuse would present obvious conflicts for the Justice Department, particularly if Gonzales is confirmed as Attorney General. Gonzales and other high-ranking government officials had important roles in the development of policies that paved the way for the abuses at Abu Ghraib and Guantanamo Bay. It is an inherent conflict of interest to have the Justice Department investigate matters in which Gonzales and Justice Department officials and attorneys were involved. Moreover, it is not reasonable to expect other Justice Department officials to lead full and fair investigations that will necessarily involve the questioning of Gonzales and other persons high in the Department and in other parts of the Executive Branch.

Reports about the development of the August 1, 2002 Justice Department memorandum again provide a compelling example of the types of conflicts that require the appointment of an outside special counsel. The memorandum is addressed to Gonzales. Although Gonzales testified that he could not recall details such as whether he spoke with attorneys at the Justice Department while the memorandum was being prepared, whether he found any part of the memorandum offensive at the time, whether he attended any meetings at which specific forms of torture such as threats of live burial or “”waterboarding”” were considered, or even whether he knew if the CIA had received the memorandum, other news reports provide very detailed accounts.

For example, a January 5, 2005 Washington Post article stated that one of the authors of the August 1, 2002 memorandum, then-Deputy Assistant Attorney General John Yoo, briefed Gonzales several times on the memorandum during its drafting. The Post also reported that Yoo also briefed Attorney General John Ashcroft, Vice President Cheney’s counsel, the general counsel for the Defense Department, and the acting general counsel for the CIA. In addition, the Post described a meeting that included detailed discussions of “”methods that the CIA wanted to use, such as open-handed slapping, the threat of live burial and ‘waterboarding’–a practice that involves strapping a detainee to a board, raising the feet above the head, and dripping water onto the head . . . [which] produce[s] an unbearable sensation of drowning.””

A conflict of interest for the Justice Department is inherent in any investigation or prosecution in which the current Attorney General, the nominee for future attorney general (the present White House Counsel Gonzales), at least two other Senate-confirmed Justice Department officials (the past and current heads of the Office of Legal Counsel), numerous other Justice Department lawyers, the Vice President’s counsel, and the top lawyers for the Defense Department and the CIA had roles in, or at least were updated on, the drafting of the August 1, 2002 memorandum that may have formed the basis for criminal wrongdoing. Similar lineups of top officials were involved in other key decisions on the torture issue, such as whether the Geneva Conventions apply to persons captured in Afghanistan. The Attorney General, particularly if he is Gonzales, cannot wall off himself and everyone else involved in the development or implementation of the detention policies–particularly when one of the avenues for investigation may be determining who in the Justice Department was involved in such policies.

Prong Three of the Test–“”It Would Be in the Public Interest to Appoint an Outside Special Counsel””–Is Met

The reports of the abuses at Abu Ghraib and Guantanamo Bay have horrified the nation. But despite several congressional oversight hearings, requests from members of Congress, and litigation under the Freedom of Information Act, the public still does not have the complete picture on the causes and scope of the abuse.

There is an obvious 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. Responsibility, and possibly criminal liability, for the wrongdoing extend higher up the military chain of command and to civilians. A small number of enlisted men and women and a few military officers should not be the only persons prosecuted for crimes, if civilians also engaged in criminal wrongdoing. Given the increasing 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 clearly in the public interest

Thank you for your attention to this matter.

Very truly yours,

Laura W. Murphy

Christopher E. Anders
Legislative Counsel

“”TOP TEN LIST”” of Torture-Related Documents:
Select Undisclosed Documents Referenced in News Articles, Government Memoranda and Reports

  1. Memorandum from the Justice Department to CIA providing guidance on twenty permissible interrogation techniques and specifically authorizing “”waterboarding”” (Aug. 2002)
  2. Presidential order authorizing CIA to set up series of secret detention facilities (late 2001)
  3. Presidential order, signed by President Bush, renewing and revising a Clinton presidential order, authorizing the CIA to transfer detainees to the custody of foreign nations that engage in torture (date unknown)
  4. Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, entitled “”The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations”” (March 13, 2002)
  5. Memorandum from the Justice Department on the liability of interrogators under the Convention Against Torture and the Anti-Torture Act when a prisoner is not in U.S. custody (date unknown)
  6. Documents relating to CIA’s request that the Defense Department hold certain detainees without registering them on prison rolls (Oct.-Nov., 2003)
  7. Memorandum from William Howard Taft IV, Department of State, responding to the January 9, 2002 Yoo/Delahunty memo on the applicability of the Geneva Conventions to Taliban and al Qaeda detainees (Jan. 11, 2002)
  8. Memorandum from James C. Ho, Attorney-Advisor, OLC, to John Yoo, Deputy Assistant Attorney General, OLC, re: interpretation of Geneva Conventions’ Common Article 3 (Feb. 1, 2002)
  9. Electronic communication summarizing FBI’s concerns about DOD’s interrogation methods (May 30, 2003)
  10. Cable from CIA agency station in Baghdad to CIA Headquarters expressing concern about certain interrogation techniques used by DOD (July, 2003)


[1] The relevant portion of the Anti-Torture Act considered in the Justice Department’s Office of Legal Counsel memoranda of August 1, 2002 and December 30, 2004 is a subsection that provides “”‘torture’ means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”” 18 U.S.C. 2340(1).

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