Key Player in Torture Scandal Nominated to No. 2 Post at Justice Department; ACLU Expresses Deep Concern With Embattled Appointee

September 28, 2005 12:00 am

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WASHINGTON – The American Civil Liberties Union today expressed deep concern that Timothy Flanigan, who served as deputy to then White House Counsel Alberto Gonzales, is being considered by the Senate Judiciary Committee to be deputy attorney general. The committee is scheduled to vote on his confirmation Thursday morning.

“Days after Private Lynndie England was convicted in the Abu Ghraib prisoner abuse case, one of the principal architects of that scandal is up for a promotion,” said Christopher Anders, an ACLU Legislative Counsel. “If Flanigan is confirmed, the nation’s top two law enforcement officials at the Justice Department will be lawyers who had major roles in creating the very scandal that they should be investigating.”

At the White House, Flanigan was one of a handful of administration lawyers responsible for opening the door to abusive interrogation and detention policies in the war on terrorism. It was these interrogation policies, the ACLU said, that set the stage for the detainee abuse at Abu Ghraib prison and Guantanamo Bay.

For example, Flanigan is on record defending water-boarding, which simulates the sensation of drowning-as he told the American Prospect, “We did not want to leave permanent damage.” In response to questions from Senate Judiciary Committee members, Flanigan said that he could not comment on whether mock executions, physical beatings or simulated drownings are inhumane.

In order to fully explore Flanigan’s role in these policy discussions, the ACLU has repeatedly called for the release of the most sought-after classified document in the torture debate: an official Justice Department memorandum to the CIA reportedly authorizing, among other things, the use of water-boarding. The administration refused, claiming the memo was “confidential legal advice for the consideration of senior administration officials.”

The ACLU said that it was also concerned by the White House’s decisions to promote senior military and administration officials involved in the torture scandal. These officials include Attorney General Gonzales; Lt. Gen. Ricardo Sanchez, the three-star top commander in Iraq, who is reportedly under consideration for a four-star command; Col. Marc Warren, Sanchez’s legal advisor who was criticized by both the Fay and Schlesinger investigations but was recently nominated to be general; Judge Jay S. Bybee, who drafted the since-abandoned administration memorandum narrowly defining torture while at the Justice Department, and who was appointed to the Ninth Circuit Court of Appeals in 2003; and William J. Haynes, general counsel at the Pentagon and a nominee to the Fourth Circuit.

Flanigan currently serves as general counsel at Tyco prompting questions about his relationship with Jack Abramoff, the former lobbyist who was recently indicted and is under several investigations. Specifically, senators have inquired into why evidence that Abramoff diverted $1.5 million in Tyco funds did not prompt Flanigan to investigate. . Flanigan has acknowledged that Abramoff contacted Karl Rove on behalf of Tyco. In addition, a former member of “Team Abramoff” is now lobbying for Flanigan’s confirmation.

The ACLU also noted that if Flanigan is confirmed, the nation’s top three prosecutors — Gonzales, Flanigan and Alice S. Fisher, assistant attorney general for the criminal division — would all be individuals who have never prosecuted or defended a criminal case.

Although the ACLU does not take positions on executive branch nominations, it urges the Senate Judiciary Committee to demand the release of relevant documents and fully investigate the questions and concerns raised by the ACLU and others. The ACLU has also called for the appointment of a special counsel to investigate the torture scandal.

“While the foot soldiers are sent off to jail, the ones in charge are getting promoted,” Anders said. “No one is above the law. The public and lawmakers have a right to know whether top administration officials actively called for ways to circumvent the Constitution and the rule of law. It’s the only way to be sure that torture or abuse will stop.”

To read the ACLU’s letter to the committee on Timothy Flanigan’s record, go to:

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