January 15, 2008
The Honorable Michael Mukasey
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Mr. Attorney General:
We write to formally request that you appoint a special counsel for the investigation and prosecution of any violations of federal criminal laws related to the interrogation of detainees held by, or being questioned by, the Central Intelligence Agency (CIA), including the destruction of two videotapes of such interrogations and any other obstruction of justice or misconduct related to them. While we applaud the Department’s efforts to open a criminal investigation of the destruction of the tapes, appointment of a special prosecutor is nevertheless urgent in this case. Such an appointment is important to ensure that the investigation covers all alleged misconduct related to the interrogations. And such an appointment is crucial in order to ensure that the American people can have confidence that a truly vigorous and independent investigation takes place concerning serious alleged misconduct reportedly involving high Administration officials – including lawyers at the White House and the Department itself.
As you well know, Justice Department regulations require the Attorney General to appoint an outside special counsel when: 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," and 3) "it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter." If this test is met, then you must select a special counsel from outside the government who would have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.
As demonstrated below, these three criteria clearly have been met, warranting the appointment of a special counsel. The Department itself has acknowledged that a criminal investigation is appropriate, at least regarding the destruction of the two videotapes. Indeed, it was recently reported that the former CIA official who reportedly ordered the destruction of the tapes has refused to testify without a grant of immunity. In addition, there have been serious allegations of other, related misconduct warranting investigation. The co-chairs of the 9/11 Commission have recently written that government officials, including in the CIA and possibly the White House, who "knew about those videotapes – and did not tell us about them – obstructed our investigation." A criminal investigation is also warranted because federal criminal laws are clearly implicated by concerns about acts of torture and other misconduct during the interrogations themselves. A number of news and other reports strongly suggest that such illegal misconduct may well have occurred during some interrogations of terror suspects by CIA personnel.
Second, there is a clear conflict of interest in this matter. A special counsel is necessary because of reports that high-ranking Administration officials, including Cabinet members and Department officials, are implicated. The Department of Justice’s Office of Legal Counsel, and former Attorney General and White House Counsel Alberto Gonzales, reportedly encouraged the President to withhold Geneva Convention protections from Afghanistan and Guantanamo Bay detainees, and the use of waterboarding and other forms of torture was reportedly discussed, approved, and authorized by officials at the highest levels of government in the White House and the Justice Department. Specifically, the Department reportedly issued several secret legal memos allegedly authorizing the use of enhanced interrogation techniques, like waterboarding. Some news reports suggest that Mr. Gonzales and White House officials were specifically aware of the tapes and may have been consulted about their possible destruction. If the conflict of interest provisions in your regulations mean anything, it is that when the Justice Department and White House lawyers may have been involved in the abuses that were committed, the Department has no business conducting the investigation and should instead turn to a special counsel.
Finally, there can be no doubt that the public interest will be served by a broad and independent investigation into the destruction of the two tapes, and possibly others, as well as related matters. As discussed above, the misconduct already reported in this matter may well extend to high levels within the Executive Branch, including the CIA, the White House, and the Department itself. Appointing a special counsel would clearly serve the interests of the Department and the public in ensuring that the investigation is thorough, impartial, and independent, and that the government itself can fairly investigate even high Executive Branch officials accused of misconduct.
As you know, unlike the previous independent counsel law, the special counsel rules provide for both accountability and transparency. An appointed special counsel would be subject to Department ethics rules and to oversight by you to prevent undue expansion of an investigation. The special counsel must report to you about any decision to prosecute or not to prosecute; you can provide that report to Congress and the public, and you must report to Congress if a special counsel is fired or its investigation is halted. Appointing a special counsel would clearly balance the need, recognized after Watergate, to ensure independent investigations of the politically powerful with the need to avoid prosecutors with unchecked power.
Given the importance of this issue and the great interest among Committee members, we ask that you respond specifically to this letter by either appointing a special counsel or by indicating why, under each of the three criteria in the regulations as discussed above, you have decided that such a special counsel is not appropriate.
We also request a briefing on procedures concerning Assistant U.S. Attorney (AUSA) John Durham’s investigation. In this context, we note that AUSA Durham was not appointed pursuant to the Department’s special counsel regulations and, as a result, we would like to know, among other things: 1) the scope of his investigative authority and reporting requirements; 2) the procedure that will govern the investigation of possible involvement by the Department itself in these allegations; 3) whether the investigation will produce a final report; 4) what attorney and other resources will be dedicated to the investigation; and 5) the specific authority the Deputy Attorney General will have in this investigation.
We look forward to a response to our request at your earliest convenience. Please direct responses and questions to the Judiciary Committee office, 2138 Rayburn House Office Building, Washington, D.C. 20515 (tel: 202-225-3951; fax: 202-225- 7680).
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
