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Friday, May 13, 2005

Dear Alberto 

Not all Democrats are sitting around waiting to see what Bill Frist will do next. Rep. John Conyers, for example, has written a letter, cosigned by 50 members of the House, requesting that AG Alberto Gonzales appoint a special prosecutor to investigate America's ongoing policy of torture:
Dear Mr. Attorney General:

We are writing to request that you appoint a special counsel to investigate whether high-ranking officials within the Bush Administration violated the War Crimes Act, 18 U.S.C. 2441, or the Anti-Torture Act, 18 U.S.C. 2340 by allowing the use of torture techniques banned by domestic and international law at recognized and secret detention sites in Iraq, Afghanistan Guantanamo Bay and elsewhere.

One year and 10 investigations after we first learned about the atrocities committed at Abu Ghraib, there has yet to be a comprehensive, neutral and objective investigation with prosecutorial authority of who is ultimately responsible for the abuses there and elsewhere. While more than 130 low-ranking officers and enlisted soldiers have been disciplined or face courts-martial for the abuses that occurred, there have been no criminal charges against high-ranking officials. Yet the pattern of abuse across several countries did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by senior U.S. officials to bend, ignore, or cast rules aside. If the United States is to wipe away the stain of Abu Ghraib, it needs to investigate those at the top who ordered or condoned torture. As a result, it is in our interest to finally show the world that we are taking these matters seriously and resolving them free of political taint . . . .

First, federal criminal laws are clearly implicated. The Anti-Torture Act criminalizes acts of torture - including attempts to commit torture and conspiracy to commit an act of torture - occurring outside the United States' territorial jurisdiction regardless of the citizenship of the perpetrator or victim.2 The Geneva Conventions generally prohibit "violence to life and persons," "outrages upon personal dignity," and "humiliating and degrading treatment."3 Violations of the Geneva Conventions also constitute a violation of U.S. federal criminal law under the War Crimes Act.4 The Administration has acknowledged on several occasions that the United States is bound by the Geneva Conventions with respect to Iraqi5 and Taliban prisoners,6 and that a violation of the Conventions would invite prosecution under the War Crimes Act.7 Numerous investigations have uncovered such violations. The Taguba report found instances of "sadistic, blatant and wanton criminal abuses" of prisoners.8 The Army's Inspector General's report found 94 incidents of detainee abuse at detention sites in Afghanistan and Iraq.9 And, the Schlesinger report confirmed five instances in which detainees died as a result of abuse by U.S. personnel during interrogations.10 The repudiation of the August 2002 memorandum you wrote as White House Counsel in December of 2004 suggests even the Administration realizes its policies contributed to actions which violated federal criminal law.11

Therefore, given the Administration's concession that the Geneva Conventions apply to Iraqi and Taliban prisoners, given its concession in the Gonzalez memo that a violation of the Conventions would also constitute a violation of federal criminal law, and given the flagrant violations of the Conventions in Iraq, Afghanistan, and Guantanamo Bay which have been confirmed by official investigations, it is clear that a prima facie violation of federal criminal law exists. It is also evident that high-ranking Administration officials, including the Defense Secretary, as well as high-ranking military officials, may have authorized these actions and are potentially subject to criminal prosecution as well.

Second, there is an obvious conflict of interest. A special counsel is necessary not only because high-ranking Administration officials, including Cabinet members, are implicated, but also because you personally, and the Department of Justice generally, may have participated in this conspiracy to violate the War Crimes Act. It has been confirmed that the Department of Justice's Office of Legal Counsel, and you yourself as White House Counsel, encouraged the president to withhold Geneva Convention protections from Afghanistan and Guantanamo Bay detainees. If the conflict of interest provisions in your regulations mean anything, it is that when the Attorney General may have contributed to the abuses that were committed, the Department of Justice has no business conducting the investigation and should instead turn to a special counsel . . . .

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