“We must investigate and demand accountability for acts of torture committed by or on our behalf,” they wrote.
By Jeremy Scahill
Today, Rep. John Conyers (D-MI), chair of the House Judiciary Committee, and Rep. Jerrold Nadler (D-NY), who chairs the Subcommittee on the Constitution, Civil Rights and Civil Liberties, wrote to Attorney General Eric Holder officially requesting the appointment of an independent Special Prosecutor “to investigate and, where appropriate, prosecute torture committed against detainees during the Bush administration.” In the letter to Holder, the two Congressmen write, “During your confirmation hearings, you testified that waterboarding is torture, and the International Committee of the Red Cross, which had been denied access to detainees held at CIA secret prisons for several years, has concluded that the treatment alleged by fourteen of these detainees constituted torture. Earlier this year, the Bush Administration’s top official in charge of military commissions concluded that the U.S. military’s treatment of Mohammed al-Qahtani ‘met the legal definition of torture.’”
Nadler and Conyers lay out the three “Justice Department regulations which provide for the Attorney General to appoint an outside special counsel:
1) A “criminal investigation of a person or matter is warranted,”
(2) 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”
3) “[I]t would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” Such counsel is to be appointed from outside the government and should have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.
The five page letter is available here. In this section, Nadler and Conyers lay out their legal argument for why Holder should take this action:
We believe that these three criteria have been met and warrant the appointment of a special counsel to investigate whether federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees. First, as noted above, there is abundant, credible evidence of torture and the cruel, inhuman, and degrading treatment of detainees, and criminal investigation is not only warranted, it is also required. The Geneva Conventions obligate High Contracting Parties like the United States to investigate and bring before our courts those individuals “alleged to have committed, or to have ordered to be committed” grave breaches of those Conventions. The war crimes act, 18 U.S.C. § 2441, creates jurisdiction in the U.S. courts whenever the victim or alleged offender is a U.S. national or member of the Armed Forces, and specifically identifies torture and cruel or inhuman treatment, as well as the conspiracy to commit those acts, as punishable war crimes. The Convention Against Torture (CAT) – signed by President Reagan in 1988 and ratified by the U.S. Senate in 1994 – also obligates the U.S. to conduct a “prompt and impartial investigation” and “submit the case to [our] competent authorities for the purpose of prosecution” whenever there are reasonable grounds to believe that torture has been committed in a territory under our jurisdiction or by U.S. nationals. The federal anti-torture statute, 18 USC § 2340A, criminalizes torture and the conspiracy to commit torture and creates jurisdiction in the U.S. courts whenever the “alleged offender is a national of the United States” or “is present in the United States.”
Second, a conflict of interest would be presented in having the Department investigate allegations that high-ranking Justice Department officials and lawyers provided legal guidance on and may have been involved in developing interrogation policy. For example, the Department of Justice’s Office of Legal Counsel and former Attorney General and White House Counsel Alberto Gonzales advised the Administration and President to deny detainees the legal protection of the Geneva Conventions, and OLC lawyers wrote extensive legal memos that authorized specific interrogation techniques that likely amounted to torture. While some key individuals are no longer with the Department or Executive Branch, it is impossible to determine at this stage and before conclusion of the necessary investigation whether additional conflicts of interest might exist or arise. When Department lawyers are alleged to have been involved, we believe the Attorney General should turn to a special counsel.
Finally, there can be little doubt that the public interest will be served by appointment of a special counsel. The authorization and use of interrogation techniques that likely amounted to torture has generated tremendous concern and outrage in this country, and has harmed our legal and moral standing in the world. As a country committed to the rule of law, we must investigate and demand accountability for acts of torture committed by or on our behalf. Appointing a special counsel to undertake this task would serve the interests of the Department and of the public in ensuring that the necessary investigation is thorough and impartial, and that the United States fairly investigates serious and credible accusations of misconduct, even where high-ranking government officials may be involved.
Importantly, Nadler noted in a press release, “A Special Counsel is the most appropriate way to handle this matter. It would remove from the process any question that the investigation was subject to political pressure, and it would preempt any perceptions of conflict of interest within the Justice Department, which produced the torture memos.”
On April 21, the Judiciary Committee announced it would hold hearings on the torture memos, releasing a statement that said: “The Office of Professional Responsibility will soon complete a report concerning the former Justice Department lawyers who wrote these memos. The Judiciary Committee will subsequently hold hearings and investigate these matters.” A date has not been announced.
NOTE: See my earlier piece What if Instead of the Nuremberg Trials There Was Only a Truth Commission? featuring attorneys Michael Ratner, Jameel Jaffer, Scott Horton and others weighing in on why a Special Prosecutor is necessary.
Obama Has 250,000 “Contractors” in Iraq and Afghan Wars, Increases Number of Mercenaries:.svg/600px-Logo_of_the_United_Nations_(B&W).svg.png){kind=logo}
