Letter to Attorney General Alberto Gonzales Urging the Appointment of Outside Special Counsel

February 15, 2005

The Honorable Alberto Gonzales
Department of Justice
Robert F. Kennedy Building
Tenth Street and Constitution Avenue, N.W.
Washington, D.C. 20530

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Re: Request for Appointment of Outside Special Counsel for Investigation and Prosecution of Civilian Violation, or Conspiracy to Violate, Criminal Laws Against Torture or Abuse of Detainees

Dear Attorney General Gonzales:

The American Civil Liberties Union strongly urges you to appoint an outside special counsel 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 the War Crimes Act[1], 18 U.S.C. 2441, or who violated, or conspired to violate, the Anti-Torture Act[2], 18 U.S.C. 2340-2340A, or other federal laws against torture and abuse will be held accountable and responsible for criminal wrongdoing. We also request a meeting with you to discuss this matter in person.

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 criminal misconduct. However, particularly after new reports of the involvement of White House, Justice Department, and other high-ranking government officials in formulating or applying many of the policies that paved the way for the horrors of Abu Ghraib and Guantanamo Bay, it is clear that the Justice Department under your leadership would have an unavoidable conflict of interest in fully investigating and prosecuting wrongdoing by civilians in this matter.

While we recognize and applaud your efforts to provide reassurances that neither you nor President Bush approve of the use of torture, for a Justice Department inquiry to be credible, an outside special counsel with no ties to the Justice Department and no prior relation to the issue is needed. If the facts are as you say, neither you nor the White House has anything to fear. But in the absence of an outside special counsel, the nation will have no assurance of full Executive Branch accountability and civilian responsibility for any criminal wrongdoing.

Three-Prong Test for Appointing an Outside Special Counsel

Justice Department regulations require that you appoint 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 you 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 the War Crimes Act, or violated, or conspired to violate, the Anti-Torture Act or other federal laws against torture or abuse in the mistreatment of detainees, the thr?ee-prong test for appointing an outside special counsel is clearly met. The extraordinary developments of the past six weeks, combined with the ongoing release of additional documents detailing widespread abuse and torture against persons held by the United States or transferred by the United States to other countries, highlight the need for an outside special counsel--particularly because you are now the Attorney General.

Prong One of the Test--A ""Criminal Investigation of a Person or Matter [Must Be] Warranted""--Is Met

Although you have stated that you and the President oppose the use of torture, an array of already-released documents, including memoranda that were either written or requested by you while serving as White House Counsel, 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 and the U.S.-ratified Convention Against Torture provides an instructive example of the relationship between yourself 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 certain interrogation procedures were criminal acts, but others were permissible. But now the Administration agrees that previously approved techniques are indeed criminal acts. The problem, however, is that the criminal statute did not change; only an interpretation of it changed. Obvious questions for an outside special counsel include how and why the August 1, 2002 memorandum was written, and whether and how anyone acted on the memorandum's advice that certain acts were permissible when, in fact, they were criminal.

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 soaking a prisoner's hand in alcohol and setting it on fire, administering electric shocks, subjecting prisoners to repeated sexual abuse and assault, including sodomy with a bottle, raping a juvenile prisoner, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner's ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, and breaking a prisoner's shoulders--all of these acts were documented in federal government documents provided to the ACLU in the Freedom of Information Act case or documented by the International Committee of the Red Cross--would apparently not constitute ""torture"" under the August 1, 2002 memorandum.

The Justice Department rejected and replaced its wrong interpretation of ""torture""--but rejected it two years too late. 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.

But 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. You testified at your 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 War Crimes Act and 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 you testified that you ""suspect[ed] that it was given"" to the CIA, which had asked you to request the August 1, 2002 memorandum from the Justice Department. During his confirmation hearing for the position of Secretary of Homeland Security, Michael Chertoff testified that, while Assistant Attorney General for the Criminal Division, he counseled ""intelligence officials"" on applying the Anti-Torture Act and the August 1, 2002 memorandum. The memorandum clearly had an impact on practices in the field.

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 any criminal acts of torture, or conspiracy to commit torture, committed by civilians, and then prosecute responsible persons. Given the recent substitution of legal memoranda, your 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 known. 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 you to immediately release 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 Justice Department personnel.

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 War Crimes Act, the Anti-Torture Act, or other federal laws against torture or abuse would present obvious conflicts for the Justice Department, particularly now that you are Attorney General. You and other high-ranking government officials had important roles in the development of policies, or the creation of a permissive climate, 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 you and other Justice Department officials and attorneys were involved, or have an obvious interest. Moreover, it is not reasonable to expect other Justice Department officials to lead full and fair investigations that will necessarily involve the questioning of you and other persons high in the Department and in other parts of the Executive Branch.

In the January 25, 2002 draft memorandum for the President, written under your name, you advise against application of the Geneva Conventions to al Quaeda and Taliban detainees--who have been held under horrific conditions at Guantanamo Bay and other locations. You wrote that a ""positive"" reason for denying Geneva Convention protections to these detainees was that denial of the protections would ""[s]ubstantially reduce[] the threat of domestic criminal prosecution under the War Crimes Act."" You went on to highlight that some of the War Crimes Act provisions apply ""regardless of whether the individual being detained qualifies as a POW.""

The last item on your list of ""positive"" reasons for finding the Geneva Conventions protections inapplicable was the most disturbing and lawless. You stated that ""it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]. Your [the President] determination [of inapplicability of the Geneva Conventions] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."" In other words, you were advising the President to find the Geneva Conventions protections inapplicable to these detainees as a way to block criminal prosecutions under the War Crimes Act.

Reports about the development of the August 1, 2002 Justice Department memorandum again provide an additional compelling example of the types of conflicts that require the appointment of an outside special counsel. The memorandum is addressed to you. Although you testified that you could not recall details such as whether you spoke with attorneys at the Justice Department while the memorandum was being prepared, whether you found any part of the memorandum offensive at the time, whether you attended any meetings at which specific forms of torture such as threats of live burial or ""waterboarding"" were considered, or even whether you 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 you 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.""

During the confirmation hearing of former Assistant Attorney General for the Criminal Division Michael Chertoff to be Secretary of Homeland Security, he acknowledged that, while the government's lead prosecutor at the Justice Department, he provided advise to ""intelligence officials"" on criminal liability under the Anti-Torture Act. A January 29, 2005 New York Times article details even greater involvement by Chertoff in advising CIA officials on specific interrogation techniques. Moreover, a redacted May 10, 2004 FBI memorandum, produced to the ACLU in the FOIA litigation, acknowledges that four senior career managers in the Criminal Division--all within the ranks of the Senior Executive Service--attended weekly meetings on the progress of interrogations of prisoners detained at Guantanamo Bay, at the time that Chertoff headed the Criminal Division. Clearly, the Criminal Division cannot be expected to effectively lead an investigation when its former head and numerous senior managers had such close connections to the interrogations.

It is impossible to avoid the conclusion that a conflict of interest for the Justice Department is inherent in any investigation or prosecution in which you while White House Counsel, John Aschroft while Attorney General, at least three other Senate-confirmed Justice Department officials (the past Assistant Attorney General for the Criminal Division and two past 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, whether the United States could transfer prisoners to countries that engage in torture or abuse of prisoners, or whether the military and the CIA could detain ""ghost"" prisoners who are kept off prison rolls to avoid the scrutiny of the International Committee of the Red Cross and other international organizations. As Attorney General, in the absence of an outside special counsel, you will be unable to adequately wall off yourself 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.

No one with the authority to prosecute civilians for violations of federal criminal laws prohibiting the torture or abuse of prisoners has investigated, or been ready to prosecute if warranted, the full scope of potential criminal acts by civilians. The military has begun the process of investigating, and when appropriate, prosecuting servicemembers, but the military cannot prosecute civilians. Similarly, General Taguba and General Fay investigated and reported on widespread abuses in military-controlled prisons, and former Defense Secretary Schlesinger led an investigation of the origins and scale of the torture and abuse problem, but none of them had the authority to force disclosure of information from civilians and, of course, none of them had the authority to prosecute civilians if warranted. Similarly, several congressional committees, the Inspector General of the Justice Department, and we have been told during the course of the FOIA litigation, the CIA, either have or are investigating at least some aspects of the torture issue. But the House and Senate Judiciary Committees have declined to use their subpoena powers, the internal agency investigations do not cross into other departments or agencies, and none of the investigators have prosecutorial powers.

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. Moreover, your leadership at the Justice Department would clearly benefit from putting all these outstanding matters related to the torture issue to rest.

Thank you for your attention to this matter, and we look forward to your response.

Very truly yours,

Anthony D. Romero
Executive Director

Laura W. Murphy
Director

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 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)

8. Electronic communication summarizing FBI's concerns about DOD's interrogation methods (May 30, 2003)

9. Cable from CIA agency station in Baghdad to CIA Headquarters expressing concern about certain interrogation techniques used by DOD (July, 2003)

10. Memorandum from Lt. Gen. Sanchez to military intelligence personnel at Abu Ghraib Prison re: interrogation rules of engagement (Oct. 9, 2003)

Footnotes

[1] The War Crimes Act criminalizes ""grave breaches"" of the Geneva Conventions. Grave breaches consist of ""[a]ny of the following acts, if committed against persons or property protected by the Convention; willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious bodily injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."" Geneva Convention III on the Treatment of Prisoners of War, Article 130.

[2] The relevant portion of the Anti-Torture Act, which is the portion 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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