http://www.afterdowningstreet.org/node/39197DOJ Considering Special Counsel to Probe Bush's Torture Policy
Submitted by davidswanson on Thu, 2009-01-22 02:15. Criminal Prosecution and Accountability
By Jason Leopold, The Public Record
The Department of Justice is giving “serious thought” to a recommendation proposed by a leading Democratic lawmaker to appoint a special counsel to conduct a criminal probe into the interrogation practices enacted during the Bush administration, according to three DOJ lawyers.
These DOJ attorneys said consideration is being given to the idea of expanding a special prosecutor’s current investigation into the destruction of the CIA’s torture tapes to include a probe into the interrogation methods, such as waterboarding, that are depicted on the tapes to determine whether federal torture laws were broken. U.S. Attorney John Durham, who was appointed by former Attorney General Michael Mukasey last year to investigate the destruction of the CIA’s torture tapes had only been given the authority to probe the destruction of the tapes.
Congress asked Mukasey last year to expand his investigation to include whether the interrogation methods shown on the videotapes violated international and federal laws, but Mukasey rebuffed the request.
The DOJ attorneys, who spoke to me several times over the past two weeks, requested anonymity because they were not given authority to speak publicly.
Fearing that the Justice Department may be working to launch a criminal probe into the Bush administration’s interrogation practices, Republicans on the Senate Judiciary Committee have delayed a vote to confirm Holder Attorney General because of statements he made during his confirmation hearing last week that waterboarding was torture.
Sen. John Cornyn, R-Texas, said he wants to ask Holder whether he intends to investigate the Bush administration and intelligence officials for torture.
Cornyn said Holder’s view that waterboarding is illegal under anti-torture laws means there is a possibility investigations may be on the horizon.
"Part of my concern, frankly, relates to some of his statements at the hearing in regard to torture and what his intentions are with regard to intelligence personnel who were operating in good faith based upon their understanding of what the law was," Cornyn said Wednesday.
That view was shared by Mukasey, who, prior to his exit from the Justice Department, told the Wall Street Journal last week that he is worried that government lawyers and others who assisted the Bush administration in crafting interrogation policies are at risk of criminal prosecution now that Holder has defined waterboarding as torture.
"Torture is a crime," Mukasey told the Journal, adding that he worried "about the effect on…the work of fine intelligence lawyers who are called on to make judgments on questions like that, often under tremendous time pressure -- not to mention the pressure of an attack that killed 3000 people
maybe there was going to be another one."
Still, these DOJ attorneys said a decision on how to proceed won’t be decided for several months because officials at the DOJ appointed by President Barack Obama, including Holder, are just beginning to read and understand the still classified legal memos drafted by DOJ attorneys that authorized George W. Bush to suspend the Geneva Conventions and approve brutal interrogation methods against alleged high-level terrorist detainees at Guantanamo Bay and elsewhere.
The attorneys added that there have been internal discussions over the past several weeks about the possibility of limiting investigations, if that were to happen, to the interrogation methods used against detainees as opposed to investigating certain Bush administration officials who sought approval to implement such aggressive methods.
But the attorneys cautioned that this was just one idea being discussed. Right now, they said, there is just internal debate on what should be done, if anything. They said the next course of action would rest heavily on Durham’s final report on the destruction of the interrogation tapes, which is expected to be filed with the DOJ in about two months.
Much of what DOJ officials are currently reviewing and considering with regard to investigating the Bush administration’s torture practices comes from a proposal by House Judiciary Committee Chairman John Conyers. Last week, Conyers published a 487-page report that called for the creation of a blue-ribbon panel and criminal probes into the Bush administration’s most controversial policies.
The report, "Reining in the Imperial Presidency: Lessons and Recommendations Relating to the Presidency of George W. Bush”, said Holder “should appoint a Special Counsel, or expand the scope of the present investigation into CIA tape destruction, to determine whether there were criminal violations committed pursuant to Bush Administration policies that were undertaken under unreviewable war powers, including enhanced interrogation, extraordinary rendition, and warrantless domestic surveillance.”
Conyers said Congress should also consider “extending the statute of limitations for potential violations of the torture statute, war crimes statute, laws prohibiting warrantless domestic surveillance, or for crimes committed against persons in United States military custody or CIA custody to ten years.”
“This criminal investigation should, for the first time, ascertain and critically examine the facts to determine whether federal criminal laws were violated,” Conyers report says. “It may be appropriate for certain aspects of the factual investigation by the prosecutor to await pertinent reports by the Inspectors General or information developed by any Blue Ribbon Commission or Select Committee. As part of this process, the incoming Administration should provide all relevant information and all necessary resources to outstanding Justice Department investigations, including with respect to the U.S. Attorney removals, the politicization of the Civil Rights Division, and allegations of selective prosecution.”
“At present, the Attorney General has agreed only to appoint a special U.S. Attorney to determine whether the destruction of videotapes depicting the waterboarding of a detainee constituted violations of federal law. Despite requests from Congress, that prosecutor has not been asked to investigate whether the underlying conduct being depicted – the waterboarding itself or other harsh interrogation techniques used by the military or the CIA – violated the law...appointment of a special counsel would be in the public interest (e.g., it would help dispel a cloud of doubt over our law enforcement system).”
Conyers’ office has contacted Obama officials to discuss whether they would support his legislative efforts to probe the Bush administration and whether they would appoint a special counsel. According to the DOJ attorneys, Obama’s senior staffers have “listened” to Conyers’ proposal but did not verbalize to the Michigan Democrat whether they would support him.
Conyers said he is also pushing Obama to issue an executive order to end “torture and abuse.”
“The President should issue an executive order that ends the use of torture or cruel, inhuman or degrading treatment of persons in U.S. custody or control and prohibits the use – by any agency, including the Central Intelligence Agency – of any practice not authorized by the Army Field Manual on Intelligence Interrogations, including but not limited to waterboarding,” he wrote in his report. “One concrete step that the President should take toward that end is to formally rescind President Bush’s Memorandum of February 7, 2002, in which he concluded that as Common Article 3 of the Geneva Conventions does not apply to either al Qaeda or Taliban detainees.”
A report issued by the Senate Armed Services Committee in December traced the U.S. abuse of detainees at Guantanamo Bay and Abu Ghraib to Bush’s Feb. 7, 2002, action memorandum that excluded “war on terror” suspects from Geneva Convention protections.
The Senate Armed Services Committee’s report said Bush’s memo opened the door to “considering aggressive techniques,” which were then developed with the complicity of then-Defense Secretary Donald Rumsfeld, Bush’s National Security Adviser Condoleezza Rice, and other senior officials.
Conyers said to ensure such policies are never implemented again, Congress “should consider enactment of a bill that embodies the principles of H.R. 4114, the “American Anti-Torture Act of 2007,” introduced by Rep. Jerrold Nadler in the 110th Congress, which provided, among other
provisions: “No person in the custody or under the effective control of the United States shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
“To be clear, torture is currently banned under United States laws (under the anti-torture statute, the War Crimes Act, the Geneva Conventions, and the Detainee Treatment Act). It is an unfortunate state of affairs that these prohibitions have been called into doubt by the Bush Administration and its insistence that it may avoid these laws simply by redefining the term “torture.” For the incoming President to reassert America’s commitment to recognizing the prohibitions against torture and cruel, inhuman and degrading treatment should not suggest that there is any ambiguity in those prohibitions. Nonetheless, actions by the United States to again foreswear its intent to use torture or cruel, inhuman or degrading treatment will constitute an important first step to permit the United States to regain its international standing as a leader in the advocacy for human rights.”
In addition to the torture tapes probe, the Justice Department’s Office of Professional Responsibility is said to be wrapping up an investigation into the genesis of the Aug. 1, 2002, torture memo addressed to then White House Counsel Alberto Gonzales and written by former Office of Legal Counsel attorney John Yoo and signed by Yoo’s boss Jay Bybee.
That OPR probe is examining “whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys,” according to H. Marshall Jarrett, the head of the watchdog office. Justice Department spokesman Peter Carr confirmed that the investigation is “ongoing”, however, it’s unclear whether that report will be released publicly upon completion.
It’s unclear whether the investigation will lead to recommendations that individuals under scrutiny be prosecuted. But there is a likelihood that the OPR investigation will recommend that Yoo and Bybee be "rebuked" for the way in which they interpreted a law that formed the basis of the memo, according to people familiar with the OPR's probe. Yoo is a professor at the University of California at Berkeley and Bybee is an appeals court judge.
The investigation was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year. But a report is expected as early as March.
The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing waterboarding and other brutal interrogation methods.
Two outspoken critics of the Bush administration’s torture policies were recently tapped for senior positions at the DOJ’s Office of Legal Counsel.
Dawn Johnsen, who was a professor of law at Indiana University, was named head of the Office of Legal Counsel. She has published a number of blistering critiques on how the Office of Legal Counsel assisted in the Bush administration in authorizing torture. She has also publicly called for criminal investigations into the matter.
In an article published in Slate last year, Johnsen wrote that after Bush’s presidency ends, “We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.”
Johnsen’s deputy, Marty Lederman, a professor of constitutional law at George Washington University, who has published numerous articles on the legal blog balkinization has gone a step further, saying evidence released thus far about the Bush administration’s interrogation policies suggests senior Bush officials committed war crimes by sanctioning torture. Both Johnsen and Lederman worked at the Office of Legal Counsel during the Clinton administration.
It is unknown whether Johnsen and Lederman have had any influence on whether the DOJ will decide to launch investigations.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
